Important Opinions 2012

Important Opinions of 2012

The “Important Opinions” that appear each week on the front page of Virginia Lawyers Weekly are those chosen by our editors as the most likely to impact law practice or a given subject area of law. Below is a listing, arranged by month, of the most Important Opinions of 2012. Subject areas are listed alphabetically within each month. Named subscribers are entitled to a free full-text PDF copy of any opinion listed here. Just click on the link at the end of the entry. If you do not currently subscribe and would like access to these PDFs and the other great benefits of a subscription, please click here

ADMINISTRATIVE

Contractor’s Service of Appeal Met Rule

In a contractor’s appeal of a license revocation by the Virginia Board for Contractors, the circuit court erred in holding that it was divested of jurisdiction over the appeal due to defective service of the petition for appeal on the agency secretary; the Court of Appeals says the contractor complied with Rule 2A:4 and service of process was sufficient.

In this first-impression case construing state Medicaid regulations covering a nursing home chain’s claim for uninsured losses, a Roanoke County Circuit Court overturns the state agency decision disallowing the chain’s nearly $1 million in provider liability costs from the chain’s 2008 cost reports, and awards attorney’s fees and costs to the chain.

Although a deputy was summoned to the location of a Board of Equalization meeting during which a freelance journalist had violated BOE rules by recording and photographing the meeting without advance notice, a Loudoun County General District Court says the BOE did not violate Virginia open-meeting laws by closing the door and discussing the matter the journalist came to hear while she was out in the corridor with the deputy; the court declines to impose sanctions on the journalist under Va. Code § 8.01-271.1.

A homeowner who won a default judgment against a contractor who accepted $35,000 to build an addition to her house only to have him dig a trench, pour footings and then abandon the job, wins reconsideration of her claim by the Board for Contractors; the Norfolk Circuit Court says the board erred by not considering all the evidence from the two informal fact-finding conferences, including the owner’s testimony.

A decision by the Virginia Department of Medical Assistance Services retracting $190,111.71 in payment from plaintiff Sentara Medical Equipment for provision of enteral nutrition supplements to Virginia Medicaid beneficiaries is reversed; the Norfolk Circuit Court says the agency’s interpretation of its regulations to require a physician’s signature of the forms submitted by Sentara is “arbitrary and capricious.”

A judge did not violate Virginia judicial canons by appearing in a courtroom to support a close personal friend in a legal proceeding or by texting a court employee during evening hours to obtain a personal phone number, which purportedly related to a political campaign by the judge’s nephew; the Supreme Court of Virginia dismisses the complaint filed by the Judicial Inquiry and Review Commission.

Regulations of the Department of Motor Vehicles that prohibit vanity license plates that may reasonably be interpreted as socially, racially or ethnically offensive are unconstitutional because they are not “viewpoint neutral,” and a Chesapeake Circuit Court says the DMV may not apply the regulations to strike vanity license tags with the labels “ICUHAJI” and “HAJIKYLR,” which could be deemed derogatory to Middle Easterners.

In a law firm’s FOIA action to compel production of records from the U.S. Army Criminal Investigation Command relating to its clients, Unconventional Concepts Inc. and Michael I. Hopmeier, the Alexandria U.S. District Court grants summary judgment to the agency, which has produced over 41,000 documents, and denies the law firm’s motion for attorney’s fees.

A Richmond Circuit Court upholds a decision by the Department of Medical Assistance Services to seek an overpayment of $100,562.37 to plaintiff Oasis Counseling Services, a Medicaid provider that offers intensive, in-home mental health services to children and adolescents, after an agency audit revealed a lack of required detail in treatment plans for a number of identified patients.

A branch pilot who lost his license in 2008 after he tested positive for cocaine pursuant to a random drug test order cannot be relicensed after he went through rehabilitation; the Court of Appeals says the trial court erred in reversing an administrative denial of relicensure by the Virginia Board for Branch Pilots.

An Augusta County Circuit Court overturns a state agency’s denial of an adoption assistance subsidy to a family that took in an infant, with the intent to adopt him, but who were stymied by the agency’s decision that the family could not seek a subsidy after the child became eligible for adoption because the child was not a “special needs” child at the time of his placement.

ADMIRALTY

Court Cautions Against ‘Drive-By’ Jurisdiction Ruling

Invoking the Supreme Court’s warning against “drive-by jurisdictional rulings,” the 4th Circuit sorts out the differences between motions under 12(b)(1) and 12(b)(6) and reverses the district court’s dismissal of a Jones Act claim, saying plaintiff’s claim of injury to his hand from a dockside conveyor belt stated a Jones Act claim.

An injured seaman who filed Jones Act and unseaworthiness claims in state court, then nonsuited, is still bound by the three-year limitations period for such claims; the Norfolk Circuit Court says these claims are time-barred, as the State Savings Statute did not extend the federal limitations period and the three-year period was not equitably tolled.

The Supreme Court of Virginia reverses a trial court decision setting aside a circuit court’s award of $2 million (reduced from a $25 million jury award) to a merchant seaman who said the shipping company he worked for fired him rather than responding properly to his allegation that he had been sexually assaulted by South Korean policemen while on authorized shore leave; a new trial is required because the trial court erroneously instructed the jury on damages for the company’s alleged unreasonable failure to pay maintenance and cure.

On rehearing, the Supreme Court of Virginia reinstates a jury award of $2 million nonpecuniary damages to a widow for the pre-death pain and suffering of a Navy sailor who died of mesothelioma after exposure to asbestos while working as a ship fitter, modifying its opinion in John Crane Inc. v. Hardick, Executor [VLW 012-6-038.]

ATTORNEYS

Lawyer v. Lawyer Tort Suit Dismissed

In this dispute between two Virginia lawyers who successively represented a client, an Alexandria U.S. District Court dismisses the first lawyer’s suit alleging tortious interference by the second lawyer hired by the family.

A contract’s fee-shifting provision for fees “actually incurred” in a collection action allows plaintiff to recover fees in this case after a default judgment even though plaintiff hasn’t paid any fees yet; but an Alexandria U.S. District Court declines to award the 40-percent contingency fee called for in the fee agreement and awards plaintiff $13,980 for past and future collection costs, not the $60,857 requested by counsel.

A securities firm that lost its FINRA arbitration proceeding against former employees who left to work for a competitor winds up paying over $1 million in attorney’s fees under a South Carolina statute that penalizes frivolous lawsuits; the 4th Circuit affirms the district court order upholding the award of $15,080 in treble damages and $1.1 million in attorney’s fees under the South Carolina Frivolous Civil Proceedings Act.

A plaintiff who paid defendant lawyer a $45,000 flat fee to defend a juvenile on a rape charge through “final verdict” of the juvenile court, has standing to seek an accounting of that fee after the lawyer was discharged before representation was concluded under the contract, says a Richmond County Circuit Court.

Although a law firm has violated ethics rules by simultaneously defending a union local in a “hybrid” Section 301 case while still representing the employee suing the union in a workers’ comp case, the Norfolk U.S. District Court Magistrate Judge finds no prejudice to plaintiff to justify disqualifying the law firm in the case; but he says the matter should be referred to the Virginia State Bar.

BANKRUPTCY

‘Absolute Priority’ Rule Applies After BAPCPA

In this first-impression decision for federal appellate courts, the 4th Circuit says the “absolute priority rule” still applies to individual debtors in possession proceeding under chapter 11, after the 2005 amendments to the bankruptcy code.

A bankruptcy court did not err in denying counsel’s request for fees of $9,572 after petitioner wife died during pendency of the bankruptcy proceeding; the Charlottesville U.S. District Court affirms awarding additional fees above the “no look” fee of $2,750 for a total of $3,000 in attorney’s fees.

An Alexandria U.S. District Court approves the test used by the bankruptcy court to consider debtor’s Chapter 13 plan, but reverses its decision to confirm the plan because it unfairly discriminates against unsecured creditors by proposing to pay her student loans outside the plan.

It’s not just “heads on the beds” that count when a bankruptcy court is trying to determine “household” size for a Chapter 13 debtor in a “blended” household that includes children and step-children who are part-time residents, but the “economic unit,” the 4th Circuit says in this first-impression case for all federal circuit courts.

CIVIL PROCEDURE

Website Company Can Sue Florida Clients

Two Florida companies, and two of their officers/employees, who hired plaintiff Virginia company on an “emergency” basis to develop and host their website and email exchange, are subject to personal jurisdiction in the Alexandria U.S. District Court.

A Norfolk U.S. District Court surveys state and federal cases on handling “bad faith” claims and bifurcates trial of an insurance carrier’s denial of coverage for an insured church’s storm loss, but denies the carrier’s motion to exclude evidence of a bad faith claim, as the church has not indicated it intends to offer bad faith evidence related to its breach of contract claim.

In this dispute between a Jamaican/South Asian food company and the company from whom it purchased assets and a business name, the Alexandria U.S. District Court grants plaintiff LLC’s motion to strike defendant’s “supplemental” expert report, as the report is not true “supplementation,” but seeks to introduce new information and new expert opinion.

In this dispute between a Jamaican/South Asian food company and the company from whom it purchased assets and a business name, plaintiff’s expert on damages passes the Daubert test, and the Alexandria U.S. District Court denies defendants’ motion to exclude the expert’s testimony.

A woman who alleges she became ill when she consumed crab salad defendant store sold after its expiration date may voluntarily dismiss her suit under Rule 41(a)(2), but she has to pay defendant’s costs and agree to tailor her request for damages and to allow defendant to use discovery materials against her, says the Norfolk U.S. District Court.

A plaintiff physician does not get extra time to file her state law claims against defendants alleging the bad faith use of the medical peer review process to force her to leave defendant hospital; the 4th Circuit says the district court improperly used the nunc pro tunc device to extend the filing period.

Although a contract between a Florida financial company and plaintiff Virginia Tech identified a street address for the company, the contract called for any notices to be sent to a Post Office box in Miami, and Virginia Tech did not need to include both addresses for substituted service on the Florida company; the Supreme Court of Virginia reverses a decision setting aside a default judgment for Virginia Tech and reinstates the judgment for $783,408.

An Alexandria U.S. District Court rejects the parties’ joint motion to seal the record after settlement of their case involving possible disciplinary action against plaintiff by a professional membership organization; the parties assert no significant interest that outweighs the public’s right of access that warrants sealing public records or redacting information.

In this dispute between two hospitals and a health system plan over payments under employee benefit plans, the district court erred in saying the Health Plan’s litigation activity meant it “defaulted” on its right to arbitrate the dispute; the 4th Circuit says there’s no per se prejudice from a dispositive motion and the hospital plaintiffs did not otherwise show prejudice from delay, their litigation expenses and any revelation of their “litigation strategy.”

A Newport News U.S. District Court has personal jurisdiction over a New York defendant whose website advertised on-the-job training programs in Virginia, allegedly using marks and training materials from plaintiff’s company, in violation of the Lanham Act.

A physician may nonsuit his state court defamation action against hospital and staff on the second day of jury trial, the Supreme Court of Virginia says; the physician’s voluntary dismissal of a removed action in federal court does not extinguish his statutory right to one voluntary nonsuit under Va. Code § 8.01-380.

A Charlottesville U.S. District Court denies defendant Canadian corporation’s motion to dismiss this patent infringement case for lack of personal jurisdiction, based primarily on defendant’s targeted solicitation of Virginia-based customers and the extent to which it has increasingly profited from participating in the state’s market for military equipment.

A Norfolk U.S. District Court Magistrate Judge says plaintiff company in this patent infringement case need not presently seek leave of court to take additional depositions; counting correctly under the federal rules, plaintiff has not yet reached the limit for depositions on the five corporate defendants.

Although the address used for service of process on defendant in this auto-accident case was for “Blue Sky Road, instead of Blue Sky Drive, the mere technical error had no impact on effective service of process, with the result that defendant’s removal to federal court was untimely; a Richmond U.S. District Court grants plaintiff’s motion to remand to state court.

In this case of a falling-out between a real estate agent and defendant clients and the agent they later hired to sell a property belonging to a living trust, the first agent, a realty company and their lawyer, all were properly sanctioned under Va. Code § 8.01-271.1 for pursuing three versions of a complaint alleging conspiracy to harm in business, tortious interference with business expectancy and defamation, without any basis in fact, and the joint and several award of $272,096.46 in attorney’s fees is affirmed by the Supreme Court of Virginia.

In a tortious interference case with an $11.75 million judgment, the trial court had a broad right to sanction defendant minority owners of a tech-development company for repeated refusals to fully comply with discovery orders, including removal of issues from the jury, but denying defendants the right to cross-examine on the issue of damages was “too harsh,” the Supreme Court of Virginia says.

Although Virginia law allows recovery of defense witness fees if a plaintiff takes a first nonsuit within seven days of trial, a Richmond Circuit Court says the statute, Va. Code § 8.01-380(C), does not allow recovery of witness fees for a nonsuit taken during trial.

A bicyclist who was struck and dragged 15 feet by a dump truck may voluntarily dismiss her suit after she was late filing expert disclosures due to the departure of her lawyer and restructuring of his former law firm at the time her disclosures were due; the Lynchburg U.S. District Court says defendant is not prejudiced by allowing plaintiff to refile her suit.

Although a magistrate judge recommended awarding this products liability plaintiff costs and attorney’s fees of $24,216 for defendant’s failure to disclose documents showing defendant considered adding foam to the side wings of the car seat in question, the Abingdon U.S. District Court says plaintiff is entitled to additional costs and fees of $45,671.

In plaintiff company’s show cause proceeding alleging defendant software company is violating an injunction plaintiff won to prevent defendant from making, using or selling certain product configurations and services, the Richmond U.S. District Court declines to allow defendant to “claw back” documents it claims have been produced inadvertently.

As a sanction under Rules 37 and 41 for continued noncompliance with its discovery orders, the Richmond U.S. District Court magistrate judge recommends dismissal of a pro se employment discrimination suit and directs employer’s counsel to file a motion under Rule 54(d)(2) detailing attorney’s fees arising from plaintiff’s misconduct.

Although no nonsuit order had been entered in plaintiffs’ first p.i. action for damages from an auto accident when plaintiffs filed their second action, the delay in entering the nonsuit order did not mean plaintiffs missed the deadline for refiling after a nonsuit, and the Supreme Court of Virginia reverses the trial court order dismissing plaintiffs’ later-filed suit as time-barred.

A Norfolk U.S. District Court says an insurance carrier must show cause why the court should not find the carrier waived its right to removal to federal court by filing a voluntary counterclaim in the state court.

An auto-accident p.i. plaintiff is not entitled to immediately collect a $4 million summary judgment against a tortfeasor, which is on appeal in state court, and the Richmond U.S. District Court grants the UIM carrier’s motion to stay plaintiff’s federal court action for breach of contract and bad faith damages.

A Norfolk Circuit Court vacates a default judgment entered against defendant on a contract claim, as plaintiff failed to effect personal service at the Norfolk address where defendant has lived since 1990 and constructive service on defendant was defective because the affidavit of service of process did not indicate service included the complaint and summons.

A plaintiff whose complaint was defective because it listed plaintiff’s attorneys but was only signed by plaintiff, may not nonsuit and refile beyond the statute of limitations, as the original complaint was not a validly pending proceeding, says a Norfolk Circuit Court.

In its published order in these three consolidated cases, the Court of Appeals says it will dismiss petitions for appeal that do not comply with Rule 5A:12(c)(1) by including exact page references to support assignments of error.

A natural gas producer defending lawsuits over disputed royalties is not entitled to pre-production privilege review on a per-document basis; the Abingdon U.S. District Court says the defendant will be adequately protected by a protective order and a clawback order.

After in camera review of approximately 100 documents, a Richmond U.S. District Court overrules defendants’ claim of attorney-client privilege on all documents; defendants have failed to show their relationship with another company’s lawyers to extend the privilege to those communications; just copying lawyers on business persons’ communications about fees billed doesn’t qualify for the privilege; other communications were not made “at the direction of a lawyer” and defendants waived the privilege when they didn’t include some documents in accordance with the court’s scheduling order.

Although defendant provided incomplete contact information for some of her witnesses in this libel suit arising from her accusations of animal abuse, the Alexandria U.S. District Court denies plaintiff’s motion in limine to exclude certain witnesses, including former employees of plaintiff.

An Abingdon U.S. District Court need not accept former in-house counsel’s view that documents listed in defendant corporation’s Privilege Log are protected by the attorney-client privilege because of his wide-ranging role in providing legal counsel, and the court orders the bulk of the documents cited produced in this litigation over royalty payments for coal bed methane gas.

CIVIL RIGHTS

No Qualified Immunity for Bail Bondsman

A bail bondsman chasing a fugitive must pay $100,000 to a disabled woman whose home the bondsman searched; the 4th Circuit says the bail bondsman is not entitled to qualified immunity from the woman’s § 1983 claim.

A medical student with ADHD and anxiety disorder can’t sue Wake Forest medical school for disability discrimination after his dismissal due to a pattern of unprofessional conduct with staff; with or without “reasonable accommodation,” the student is unqualified for the medical program, the 4th Circuit says.

Police responded reasonably to a domestic call involving a family whose members were deaf by handcuffing the father behind his back, which impeded his ability to write notes or sign, and by calling in an American Sign Language trainee, and the county is entitled to summary judgment on the father’s claim that police violated his rights under the Americans with Disabilities Act.

A tenant who could not climb the stairs to his apartment after he developed stage IV lung cancer can sue his landlord for violation of the Virginia Fair Housing Act for its refusal to allow his early termination of his lease due to his disability; the Fairfax Circuit Court overrules defendant landlord’s demurrer to the tenant’s suit.

A police officer did not use excessive force in responding to a “shots fired” call and, after finding a woman with a bloody nose and telling her suspected assailant at least 16 times to put down his gun, fatally shooting the man, who fired first; the Roanoke U.S. District Court dismisses the suit filed by the man’s estate under 42 U.S.C. § 1983.

Police officers do not have qualified immunity from a suit claiming they forcibly entered plaintiff’s home and used a Taser on him in a “welfare check” after he cancelled a 911 request for help in taking a knife away from his wife, who had grabbed and threatened to harm herself and then relinquished the knife, says an Alexandria U.S. District Court.

Three of five ads paid for by the Hispanic Leadership Fund that criticize the oil or healthcare policies of “the Administration,” “the White House” or “the Government” identify a specific federal candidate – President Obama – and therefore are “electioneering communications” subject to regulation under the Federal Election Campaign Act, says an Alexandria U.S. District Court.

Washington D.C.-based lawyers who won plaintiff Project Vote’s suit seeking expanded access to voter registration records will not get attorney’s fees at hourly rates ranging from $374 for associates up to $734 for partners; instead, the Norfolk U.S. District Court orders hourly fees ranging from $225 for associates up to $400 for the most experienced lawyers, and reduces the overall fee award by 10 percent because of “inexact documentation” and charges for travel time.

A woman who alleges she spent 87 days in jail after dismissal of charges that she threatened to burn her mother’s house, has not stated a § 1983 claim against defendants, the Hampton Circuit Court Clerk and a deputy clerk, and the Newport News U.S. District Court awards defendants attorney’s fees under Rule 11 for plaintiff’s failure to follow Rule 15 in adding a defendant; the court declines to exercise supplemental jurisdiction over plaintiff’s remaining state law claims of negligence, which involve novel questions under Virginia law of potential liability of court personnel.

CONSUMER PROTECTION

FDCPA Claim Not Mooted by Offer

A law firm trying to collect on a debt allegedly owed not by plaintiff, but by her late husband, could not avoid her suit under the Fair Debt Collection Practices Act with a Rule 68 Offer of Judgment that provided for the maximum statutory damages but an equivocal offer of actual damages; since the FDCPA suit was not mooted, the 4th Circuit reverses dismissal of the suit, as plaintiff has stated FDCPA claims with allegations that defendants failed to disclose that a communication was from a debt collector and contacted her directly, instead of communicating with her lawyer.

A lender did not violate the Truth in Lending Act when it used a form similar to “Model Form H-8” instead of “Model Form H-9” to notify a lender refinancing a home mortgage of his right to rescind the transaction, and the 4th Circuit upholds the district court’s dismissal of the defaulting borrower’s TILA claim.

An enlisted Navy seaman who sued Pete’s Auto Service for the loss of his 2002 Jeep Grand Cherokee, which Pete’s towed and sold while plaintiff was deployed, wins summary judgment from a Newport News U.S. District Court Magistrate Judge on his claim under the Servicemembers Civil Relief Act, but the court will try the claim for compensatory and punitive damages and reserves a ruling on attorney’s fees.

An Alexandria U.S. District Court says a 2010 U.S. Supreme Court requires some changes in this circuit’s rules on making fee awards, and the district court awards a plaintiff, who had partial success in his Truth-in-Lending Act suit, $25,020 in attorney’s fees, $350 in costs and $4,001 in TILA damages in this “long-running TILA” litigation by a plaintiff who has been fighting foreclosure on his refinanced home since 2009.

A law firm trying to collect credit-card debt can invoke the mandatory arbitration clause in debtors’ credit-card agreements, and a Richmond U.S. District Court orders arbitration of this Fair Debt Act class-action lawsuit.

A consumer’s Ford 650 Series truck that has suffered mechanical malfunctions is not a “consumer product” under the Magnuson-Moss Warranty Act or a “motor vehicle” under the Virginia Lemon Law, and a Richmond U.S. District Court magistrate judge awards summary judgment to defendant Ford Motor Company.

A debtor suing on an alleged Truth-in-Lending Act disclosure violation lost his right to pursue his claim when he rejected defendant’s Rule 68 offer of judgment; an Alexandria U.S. District Court says because the Rule 68 offer provided for complete relief of statutory damages and “reasonable” attorney’s fees, debtor’s claim has been mooted and the court no longer has jurisdiction.

A Michigan collections company and a Michigan law firm that sued a Virginia resident in Michigan to collect on a credit card debt for jewelry purchased in Virginia, and served process on debtor in Virginia, can be sued in Virginia federal court on debtor’s claim the law firm violated the Fair Debt Collection Practices Act; but the Richmond U.S. District magistrate judge dismisses the suit against two individual defendant attorneys, for lack of personal jurisdiction.

An enlisted Navy seaman who sued Pete’s Auto Service for the loss of his 2002 Jeep Grand Cherokee, which Pete’s towed and sold while plaintiff was deployed, wins his case under the Servicemembers Civil Relief Act, and the Newport News U.S. District Court reserves for jury trial the amount of damages plaintiff may recover, and says he also is eligible for attorney’s fees.

A debtor wins $9,385.50 in damages and attorney’s fees in a default judgment against a Georgia debt collection agency in her suit alleging the agency violated the Fair Debt Collection Practices Act when it threatened legal action it could not take and called her supervisor to suggest debtor was about to be arrested.

The Lynchburg U.S. District Court awards a used car purchaser nearly $10,000 in attorney’s fees after awarding about $2,000 in damages on his Truth in Lending Act (TILA) and state law usury claims; defendant used car dealer has failed to appear and purchaser has prevailed on all claims, including a novel and complex TILA issue; the fee request is well documented and discounted 15 percent.

In this lawsuit by the owner of two champion Labrador Retrievers against an animal hospital that allegedly breached an agreement to collect and preserve dog semen samples, a Richmond U.S. District Court dismisses the owner’s claims for negligent misrepresentation, constructive fraud and violation of the Virginia Consumer Protection Act, but allows a claim for punitive damages to go forward.

A collections’ lawyer’s legal responses to a debtor’s TILA and usury counterclaims do not violate the Fair Debt Collections Practices Act, merely because they are “unsuccessful or contain immaterial technical errors,” and an Alexandria U.S. District Court dismisses FDCPA claims debtor filed against the collections attorney.

A car buyer suing a used car dealership for allegedly selling him a Honda Accord under an unsigned retail installment sales contract that charged 28 percent interest, is entitled to a default judgment, but he cannot collect $2,000 in statutory damages under the Truth in Lending Act; the Lynchburg U.S. District Court says the Dodd-Frank amendment to the TILA doubling the amount of the statutory damages did not become effective July 22, 2010.

A credit-card company’s failure to use the Consumer Data Industry Association’s 2009 Credit Reporting Resource Guide to investigate a credit reporting dispute after a debtor’s bankruptcy discharge did not violate the Fair Credit Reporting Act’s command to conduct a “reasonable” investigation, says an Alexandria U.S. District Court.

CONTRACT

Architect Lost AIA Contract Protections

Although the final contract between an owner building a new seminary and an architectural firm stripped away many protections an architect has under the standard AIA contract, that is the contract the architect signed, and the Lynchburg U.S. District Court says the owner was entitled to share the architect’s Design Drawings with the replacement architectural firm it hired.

Although the parties’ choice-of-law clause calls for application of California law, a Norfolk Circuit Court says the choice-of-law provision will not allow plaintiff tax preparation service to sue defendant bank for promissory estoppel, a claim that Virginia law does not recognize.

In this dispute arising from a construction project at Falling Creek dam in Bedford County, a Roanoke U.S. District Court grants defendant Western Virginia Water Authority summary judgment against the contractor, as the court finds the parties had the kind of close contractual relationship that gives rise to an implied right of indemnification.

In this contract action by actor Corbin Bernsen to recover on a spokesperson agreement to promote law firm licensing of defendant marketing firm’s “Big Case” advertising campaign, a Norfolk U.S. District Court Magistrate Judge will exclude defendant’s legal marketing expert’s opinion on how Bernsen’s conduct negatively affected his effectiveness as a spokesperson.

Although plaintiff builder split his contractor business into two corporations and is still trying to straighten out his licensing issues, his alleged unlicensed status does not void the contract on which he is suing to collect $385,000 in extras on defendants’ custom-built home, and the Salem Circuit Court denies the homeowner’s motion for partial summary judgment.

A subcontractor that received debris from site clearing on a public road project may bring an action on a contractor’s payment bond under Va. Code § 2.2-4337(A); while not a typical subcontractor, plaintiff Yard Works is a valid claimant under the statute, says a Hanover Circuit Court.

A post-doctoral fellow conducting research at UVa’s Department of Psychiatry & Neurobehavioral Sciences who alleges his appointment was not renewed because he complained about his supervisor’s fraudulent allocation of levels of effort on a particular government grant withstands summary judgment on his retaliation claim under the False Claims Act, but the Charlottesville U.S. District Court grants summary judgment on his § 1983 claim alleging violation of his First Amendment rights.

In the wake of defendant residential youth treatment center’s $6.85 million settlement of a False Claims Act suit alleging fraudulent records and Medicaid claims, an Abingdon U.S. District Court determines the three former employees who initially filed suit as relators are entitled to 20 percent of the recovery.

In this dispute between a government information technology contractor, Preferred Systems Solutions Inc., and one of its subs, GP Consulting LLC, the Virginia Supreme Court affirms an award of $172,395 to PSS, whose former subcontractor went to work for its competitor, GP, days after leaving the plaintiff company.

Virginia’s mediation statute protects the confidentiality of information provided at a mediation conference with a magistrate judge, but defendant waived that privilege in providing that information to the court, and the Alexandria U.S. District Court says it may consider the information in deciding whether the parties reached an enforceable settlement of their dispute over violation of a non-disclosure agreement.

Although a financial advisor who allegedly operated Ponzi schemes had changed brokers before plaintiff investors filed their FINRA arbitration claim, the current broker must arbitrate the claim because the advisor was an “associated person,” the 4th Circuit says.

A Roanoke U.S. District Court says plaintiffs, who sold their school photography accounts to defendant, a similar business, but were later fired by defendant, can try their claims against defendant photography business for breach of contract and defamation based on allegations that defendant’s customer service representative made disparaging comments about plaintiffs to a parent who was seeking a photograph of her daughter after her death in a car accident, complaints which the parent repeated to school officials.

In this pay dispute between a prime contractor and subcontractor on a foreign telecommunications contract, an Alexandria U.S. District Court says the incorporation of the AAA Rules in the subcontract’s arbitration clause, and the waiver provision drafted by the prime contractor, are “clear and unmistakable evidence” that the parties intended for the issue of arbitrability to be decided by the arbitrator.

A contractor may not proceed to enforce a mechanic’s lien against a homeowner because the contractor’s complaint does not include MERS, the Mortgage Electronic Registrations Systems Inc., as a necessary party to the mechanic’s lien suit, says a Fairfax Circuit Court.

In this contract dispute involving remodeling and restoration of cabinetry in a private aircraft, the Norfolk U.S. District Court says a counterclaim plaintiff states a claim for breach of an implied duty of good faith and fair dealing as part of its contract action, and the court rejects a defense of disclaimer of an implied warranty that was not “conspicuous.”

A trust cannot overturn a settlement agreement and sue defendants on allegations that defendants misrepresented the value of stock to be transferred pursuant to the agreement settling the underlying suit; the Supreme Court of Virginia says the parties clearly were adversaries and defendants cannot show they reasonably relied on misrepresentations and omissions by defendants as to the value of the stock for determining its sale price under the terms of the settlement agreement.

The Accomack Circuit Court applies the “source of duty rule” and says a couple who alleges defendant contractor drew payment but never finished building their new home, may sue for breach of contract, but not for fraudulent inducement.

In this litigation arising from the sale and purchase of two companies, including a legal malpractice action against a lawyer who represented plaintiffs, a Richmond U.S. District Court will enforce a settlement agreement between plaintiffs and the lawyer, as that settlement was not contingent upon settling the underlying litigation and the parties acted as though they had settled the claim; but the court will not enforce a purported settlement agreement between the business litigants, as defendants added a “subject to full execution and release” clause after a settlement conference with a magistrate judge.

After ordering a new trial on a number of false claims submitted by defendant in this False Claims Act suit against a moving company accused of a bid-rigging scheme to move household goods for U.S. military personnel from Germany to the U.S., an Alexandria U.S. District Court says the FCA mandatory civil penalty of at least $50,248,000 constitutes an unconstitutionally excessive fine in violation of the Eighth Amendment, but holds it does not have the discretion to fashion some other civil penalty that would be within constitutional limits and so no civil penalty will be imposed.

In this suit by plaintiff investors in a wood products business against their business manager’s alleged kickback scheme using inflated invoices for equipment, the Abingdon U.S. District Court says defendants violated RICO and Virginia’s business conspiracy law and are liable for treble damages of $3.5 million and attorney’s fees.

A doctor who had a consulting agreement with defendant for assistance in starting a medical practice, and who discussed secretly negotiating purchase of the practice that had terminated him, cannot sue the consultant who ultimately bought the practice for fraudulent conveyance, breach of fiduciary duties or breach of contract, says an Alexandria U.S. District Court.

A woman who operated a riding center and alleges she and two other women were defrauded by defendant, who represented he was a banker and used multiple entities to gain control of their assets, has not stated a federal racketeering claim that will let her stay in federal court; the Lynchburg U.S. District Court says the few instances of bank fraud and wire fraud alleged do not amount to long-term, habitual criminal conduct to support a RICO claim.

A letter from defendant surveyor to the property owner who hired the surveyor to mark boundary lines of a parcel in Chesapeake, stating the proposal, when signed, would serve as the parties’ written agreement, was not a “writing” for the purposes of the statute of limitations in Va. Code § 8.01-246, and the Supreme Court of Virginia affirms dismissal of the property owner’s contract claim alleging erroneous marking of the property lines.

Plaintiff sub-subcontractor on defendant Coast Guard’s Deepwater Acquisition Project cannot sue the Coast Guard for defamation and related tort claims for alleged injuries from termination of its at-will consulting agreement and removal of its name from a list of government contractors; the 4th Circuit says permitting these claims to go forward would reward artful pleading and impermissibly constitutionalize state tort law, and it affirms summary judgment for defendants.

Although plaintiff had a contract with a software company to market its software and negotiate a contract with Freddie Mac to replace the agency’s quality control software, Freddie Mac wanted a three-party relationship, and its ultimate decision to form a contract only with the software company did not breach an agency contract with plaintiff marketing company; the Alexandria U.S. District Court grants summary judgment to Freddie Mac on plaintiff’s claims for breach of contract, business civil conspiracy and tortious interference with contract.

Defendant software company, whose senior account manager landed a $11.1 million government contract, wins summary judgment in the account manager’s breach of contract suit alleging he was entitled to be paid a commission on the contract as a three-year deal, as opposed to a one-year deal; plaintiff has failed to raise a genuine issue of material fact, says the Alexandria U.S. District Court.

The 4th Circuit reverses summary judgment for defendant service-station operator in plaintiff fuel distributor’s suit to enforce a restrictive covenant that was part of a Purchase Sale Agreement and deed and prohibited the service-station operator from selling non-BP branded products or offering certain automotive services; in a 2-1 split, the panel majority says Virginia courts apply a different test to allow broader restrictions for noncompetes in purchase agreements, but a dissent says Virginia won’t allow “blue-penciling” the contract.

A Charlottesville U.S. District Court says a post-doctoral fellow conducting research at UVa’s Department of Psychiatry & Neurobehavioral Sciences can sue the departmental chair and his supervisor under the False Claims Act on individual-capacity and official-capacity claims for prospective relief, but not in their official capacities for damages.

CORPORATE

Investor’s Claim under Securities Act Advances

An investor who thought his $200,000 payment to defendants was buying 40,000 shares in C2 Future stock that would allow expansion of an educational company into Korea, instead of “office expenses for existing schools,” can sue defendants for an alleged fraudulent scheme that violated the Virginia Securities Act, says a Fairfax Circuit Court.

A lawyer in a two-member firm could sue the other shareholder and bring a derivative action on behalf of their professional corporation, after discovering the other shareholder was writing checks from the firm’s escrow account to his wife and children, and the Supreme Court of Virginia upholds a judgment for plaintiff lawyer giving her a share of the $234,000 fee to the firm for a personal injury settlement, $17,827 in additional damages, attorney’s fees of $269,813 and costs of $19,416.

A Chesterfield County Circuit Court sets aside a $278,737 jury award to plaintiff buyers against an individual defendant in residential real estate construction project, as the buyers did not present sufficient evidence to support their theory of piercing the corporate veil to hold the individual defendant liable for damages.

CREDITOR’S RIGHTS

No Personal Liability After Novation

Although a couple’s golfing buddy personally signed the original promissory notes he gave to the couple on loans, his contract for a novation given after the couple lost the original notes indicated debtor signed on behalf of his insurance company, and debtor is not personally liable for the debts, says a Roanoke County Circuit Court.

Although plaintiff Mortgage Electronic Registrations Systems was negligent in not examining the land records on chain of title and failed to have a couple execute the MERS deed of trust to subordinate their life estate to the lien, the Madison County Circuit Court weighs the equities and decides to subordinate the MERS deed of trust to a Bank of America deed of trust.

CRIMINAL

‘Project Exile’ Case Not Selective Prosecution

An African-American defendant prosecuted in Richmond federal court for firearms possession cannot show racially discriminatory “selective prosecution” because two white defendants who stole the firearms in Campbell County and sold them to defendant were prosecuted in state court.

The Virginia Supreme Court agrees with the Court of Appeals that under the facts of this case, two officers could have reasonably viewed defendant’s statement, “That’s what I want, a lawyer, man” as ambiguous and they were permitted to ask defendant clarifying questions.

The 4th Circuit says a trial court erred in sentencing a mother and daughter who pleaded guilty to conspiracy to distribute the mother’s prescription oxycodone pills, because the district court did not adequately explain its methodology for calculating drug quantity and make findings that would permit appellate review of the mother’s 120-month sentence and the daughter’s 72-month sentence for procedural reasonableness.

A Fairfax Circuit Court says a woman who rejected the prosecutor’s offer to allow her to plead guilty to misdemeanor shoplifting, and who was convicted by a jury of felony shoplifting, is not entitled to a writ of coram vobis on a claim she did not understand her felony conviction might jeopardize her immigration status.

The 4th Circuit says a defendant convicted of gang-related racketeering cannot overturn his convictions with a claim that his Confrontation Clause rights were violated because the government allowed two El Salvadorian police officers to testify without revealing their identities to the defense.

A marijuana user who asserts his Second Amendment right to possess firearms for his own protection has his firearms conviction under 18 U.S.C. § 922(g)(3) vacated by the 4th Circuit, and the government gets another chance to make its case.

The Supreme Court of Virginia says the Court of Appeals erred in declining to consider a transcript that was not filed within the 60-day period in Rule 5A:8(a) but that ostensibly was made part of the record by the circuit court under Va. Code § 8.01-428(B) and Rule 5A:9 as the correction of a clerical mistake.

A husband’s emails to his estranged wife accusing her of soliciting sex on Craigslist and calling her a “coke whore baby killing prostitute” were not “obscene” under the definition of obscenity approved by the General Assembly, and the Supreme Court of Virginia vacates the husband’s conviction for harassment by computer in violation of Va. Code § 18.2-152.7:1.

On rehearing en banc, the Court of Appeals reverses and remands defendant’s jury trial convictions for sexually molesting his stepchild; the commonwealth’s failure to disclose before trial a recording of victim’s interview violates constitutional due process requirements of Brady v. Maryland because it could have been used for impeachment purposes.

A Fairfax Circuit Court denies extradition of petitioner to Florida, as the extradition papers do not accurately state the status of the charges and the alleged offenses, and incorrectly assert that defendant fled Florida to avoid prosecution, when he was on probation and no proof has been offered that he could not leave the state.

A nursing-home LPN who repeatedly logged performance of patient care procedures and medication on a patient’s chart, even though an FBI surveillance video showed she had not done these tasks, cannot overturn her forgery conviction in the Court of Appeals.

A Norfolk U.S. District Court stays petitioner’s motion under 28 U.S.C. § 2255 to change his sentence on drug charges, as there are two cases pending in the U.S. Supreme Court on the retroactivity of Fair Sentencing Act provisions governing a mandatory minimum sentence for cocaine base offenses, and the law in this circuit is still somewhat unsettled.

A prosecutor’s references to defendants as “liars” was not plain error, in light of precedent from other appellate courts, and the 4th Circuit affirms defendant’s conviction for making a false entry in a bankruptcy-related document.

A juror’s use of Wikipedia to research an element of defendant’s illegal “cockfighting” charges violated his right to a fair trial, and the 4th Circuit vacates defendant’s conviction for violating an animal fighting statute, 7 U.S.C. § 2156(a).

An embezzlement defendant who was being transported by a police officer from a Golden Corral restaurant in Baltimore to jail cannot suppress his inculpatory responses to an officer’s questions about where defendant lived and why he was working in Baltimore, as the Charlottesville Circuit Court holds the drive-time conversation was not a custodial interrogation.

A Charlottesville Circuit Court denies defendant’s motion to suppress an out-of-court identification of him by the alleged victim as the intruder into the victim’s home, following discovery of a photo identification card bearing defendant’s picture outside near the driveway to the victim’s home.

On remand for defendant’s resentencing on cocaine distribution convictions, the trial court erred by reading a Statement of Facts to the resentencing jury, including a description of a conversation relating to a drug transaction for which defendant was not charged; the Court of Appeals reverses and remands for resentencing.Booker v. Commonwealth (VLW 012-7-093) (14 pp.)

Court Finds ‘Presumption’ for Interpreter

A native speaker of Haitian Creole who said he spoke limited English at the time of his 2006 trial on crack cocaine conspiracy charges loses his 28 U.S.C. § 2255 motion alleging his counsel did not inform him that he had the right to testify at his trial; the Harrisonburg U.S. District Court says defendant has failed to rebut the presumption that court interpreters execute their official duties with propriety, accuracy and integrity.

A defendant cannot overturn his 1998 conviction of using a firearm in violation of 18 U.S.C. § 924(c)(1)(A) for taking a gun in payment for a drug debt cannot overturn with a 2007 U.S. Supreme Court case that said bartering drugs for a gun is not unlawful under the statute; the Roanoke U.S. District Court says defendant’s case doesn’t match the 2007 case, and there was ample evidence to otherwise convict defendant of using a firearm while drug trafficking.

Although a trial court denied the prosecution a continuance when a cooperating witness failed to appear, and the prosecution then noll prossed the case, the commonwealth nevertheless can later indict defendant on identical charges of fraudulent use of a credit card; the Court of Appeals rejects defendant’s argument that the commonwealth did not show “good cause” for the noll pross, and affirms defendant’s convictions under Va. Code § 18.2-195.

Although the commonwealth offered no reason to noll pross multiple worthless check charges at trial, nor was there any specific finding of “good cause,” the prosecutor was exercising the commonwealth’s right to which statute to use to prosecute defendant’s conduct and the Court of Appeals has no proper role in second guessing the commonwealth’s choice; defendant’s convictions are affirmed.

A convicted felon pleading guilty to possession of ammunition, who waived his right to appeal “any sentence,” cannot seek to have his sentence on the firearm charge reduced in light of his assistance to the government in prosecuting an unrelated case, and the 4th Circuit dismisses this appeal of the district court’s denial of the government’s motion for a sentence reduction pursuant to Fed. Rule Crim. P. 35(b).

Although identified sources could only say a married couple had grown large amounts of marijuana on their property in the past and one source had purchased marijuana from wife at some unidentified earlier time, police confirmed additional details in the affidavit, such as the couple’s high use of electricity, and the 4th Circuit upholds a thermal-imaging search that led to the seizure of marijuana on the couple’s West Virginia property.

Although the statement of facts signed by a judge who did not hear the matter indicated defendant pleaded “not guilty,” defendant concedes that he pleaded “no contest,” and he therefore has waived any but a jurisdictional challenge to the trial court order revoking his suspended sentence for petit larceny; the Court of Appeals affirms the revocation order.

At a robbery defendant’s probation revocation hearing, a trial court did not violate defendant’s due process right to confront witnesses when it admitted a detective’s hearsay testimony concerning two other offenses, one of which never resulted in charges against the defendant and one where the charges were dropped; on rehearing en banc, the Court of Appeals says the trial court properly admitted the hearsay testimony.

A trial court abused its discretion when it sentenced a robbery defendant on a firearm conviction under Va. Code § 18.2-53.1 to 10 years, when the maximum sentenced allowed under the statute is a mandatory minimum sentence of three years for a first conviction or five years for a subsequent conviction; the Court of Appeals reverses the 10-year sentence and remands for a new sentence, but affirms the two-five year sentences for each of the robbery charges.

A defendant indicted for possessing cocaine with intent to distribute is not entitled to suppress cocaine and cash found in his car by attacking the reliability of the drug dog and authenticity of the video of his traffic stop; the Roanoke U.S. District Court says the totality of the circumstances, including the dog’s training and field performance, satisfies the “fair probability” standard, and defendant alleges no factual basis to question the video’s authenticity.

United States v. Greene (VLW 012-3-308) (10 pp.)

Dad’s Video Showed Visitation Exchanges

In proceedings mother instigated to revoke father’s suspended sentence for assault and battery, a majority of the Court Appeals affirms mother’s 10-day jail sentence for summary contempt under Va. Code § 18.2-456(1); father’s recorded and testimonial evidence contradicted mother’s claims to the trial court and commonwealth’s attorney; her post-trial motion is insufficient under Brandon v. Cox, 284 Va. 251 (2012), to preserve her sufficiency of evidence and due process arguments on appeal.

A defendant convicted of murder-for-hire is entitled to another chance to show his “actual innocence,” as the 4th Circuit says a trial court erred in its application of the “gateway innocence” test for evaluating defendant’s habeas claims.

The 4th Circuit says a former deputy sheriff who told an officer he was a deputy in an attempt to avoid a speeding ticket cannot overturn his conviction for impersonating an officer by claiming the Virginia statute at issue, Va. Code § 18.2-174, violated his First Amendment right to free speech.

Using an ‘anonymous’ jury whose biographical information has been withheld from defense lawyers and defendants accused of drug-trafficking and murder of government witnesses is not a reason to overturn their convictions; the 4th Circuit follows decisions by its sister circuits and provides guidelines for use of anonymous juries.

The Court of Appeals says appellant has waived his claim of insufficient evidence, as his lawyer has failed to cite sufficient legal authority in the brief appealing his conviction for use of a firearm in commission of a robbery.

A defendant who said he told his trial counsel he wanted to appeal as he was taken from the courtroom after sentencing on a guilty plea to conspiracy to distribute oxycodone is granted post-conviction relief for his counsel’s ineffective assistance of counsel in failing to consult with defendant about a possible appeal, in this case from Abingdon U.S. District Court.

A defendant’s statement – “Oh he’s going to put this all on me” – made in response to hearing a tape recording of a codefendant’s statement is suppressed by a Loudoun County Circuit Court; the statement was obtained after defendant had invoked his right to counsel when approached by officers of the Loudoun County Sheriff’s Office while defendant was in custody in Maryland on a Virginia warrant, awaiting extradition.

The 4th Circuit affirms defendant’s conviction of receipt and possession of child pornography, but vacates a restitution order requiring defendant to pay $305,220 to “Vicki,” an identified victim; the case is remanded for calculation of the loss this specific defendant caused the victim portrayed in the pornographic material he possessed.

The 4th Circuit affirms a 100-month prison sentence for a defendant convicted of methamphetamine manufacture, but vacates special conditions of release restricting defendant’s access to family members, including his girlfriend and children, based on two 2000 state convictions for carnal knowledge of a child.

A man with an extensive history of making obscene phone calls threatening women with sexual violence, but who has not made such a call since 2003, will not be civilly committed as a sexually dangerous individual under 18 U.S.C. § 4248; the 4th Circuit rejects the government’s claim that the district court made an “abstract determination” that the man was unlikely to commit new offenses of a sexually violent nature.

The Court of Appeals upholds defendant’s convictions for robbery of a Chesapeake SuperMart, abduction, use of a firearm and unlawfully wearing a mask, and rejects defendant’s appellate claims, including his claim that the trial court should not have allowed another public defender to represent defendant after allowing his first public defender to withdraw after a threat by defendant.

The 4th Circuit affirms a grant of habeas relief to a defendant convicted of the capital murder of a couple in their home, after the district court’s de novo review of defendant’s claim that his trial attorneys were ineffective for failure to raise a claim under Atkins v. Virginia that defendant’s mental retardation barred the death penalty.

The 4th Circuit says a petitioner who pleaded guilty to embezzlement by a bank employee is entitled to a writ of error coram nobis because he was denied effective assistance of counsel when his lawyer at the time misadvised him by telling him he could not be deported based on this single felony offense.

A defendant identified through a “cold hit” DNA analysis and convicted of the 1975 rape and murder of an 88-year-old Emporia woman cannot overturn his conviction with claims that include a challenge to the trial judge’s refusal to allow him to present “database match probability” statistical evidence as an alternative to the commonwealth’s “random match probability” statistical evidence on DNA matches; the Court of Appeals says the trial court did not abuse its discretion in refusing to allow defendant’s expert testimony on this method.

A mother who balled up a child support summons and custody order in front of a juvenile and domestic relations district court judge is not entitled to reversal of her contempt conviction for insufficient evidence and lack of confrontation, the Court of Appeals says; Va. Code § 18.2-456 allows summary punishment for direct contempt historically recognized to include openly insulting or resisting a court’s authority.

A criminal defendant ordered to make restitution for wire fraud is not required to forfeit her interest in an ERISA-protected Employee Stock Ownership plan, an Alexandria U.S. District Court says; ERISA’s anti-alienation and assignment provision bars the government from seeking criminal forfeiture of defendant’s interest valued at $82,253, but the court says other remedies may be available.

U.S. v. Herrmann (VLW 012-3-619) (9 pp.)

Dog Owner Wins New Trial

A majority of the Court of Appeals says defendant is entitled to a new trial because the trial court applied the wrong standard in finding her guilty of inadequately caring for her dog and ordering her to pay $1,350 to the local humane society; Va. Code §3.2-6569(E) requires proof beyond a reasonable doubt; the dissent says the trial court’s error is harmless in view of the record evidence showing the dog was endangered.

A trial court erred in dismissing on speedy trial grounds indictments charging defendant prison inmate with malicious wounding and assault of a fellow prisoner, and the dismissal order is reversed by the Court of Appeals, but one judge says further prosecution is permitted only when an indictment is disposed of by nolle prosequi iiibeforeiii the speedy trial statute has run.

All evidence indicated the firearm defendant possessed already had its serial number altered when he carried it into Brunswick County, and the Court of Appeals reverses defendant’s conviction for altering the firearm serial number in violation of Va. Code § 18.2-311 because the commonwealth did not prove venue in Brunswick County where defendant was arrested.

Allowing a firearms expert to testify about a BB gun may have been harmless error, but allowing the expert to testify on the ultimate issue in the case – whether defendant entered the bank while armed with a “deadly weapon” – was reversible error, and the Court of Appeals reverses defendant’s convictions on this charge and the related conspiracy charge.

The 4th Circuit upholds a criminal contempt conviction for a plaintiff who lingered in the courtroom to curse and complain about the judge who had just dismissed his civil rights case for his repeated late appearances in court, but reverses his summary contempt conviction for showing up late for his contempt trial.

A defendant who pleaded no contest in Florida to a charge of attempted sexual battery on a child under age 16 has been “convicted” as a sex offender for purposes of the required registration under the Sex Offender Notification and Registration Act, and the Big Stone Gap U.S. District Court refuses to dismiss an indictment that charged defendant with failure to register.

U.S. v. Bridges (VLW 012-3-529) (10 pp.)

‘Actual Innocence’ Writ Granted in DUI Case

The Supreme Court of Virginia grants a writ of actual innocence to a defendant convicted of felony third offense DUI, holding that an equally divided Court of Appeals, sitting en banc, may not reverse a judgment previously entered by a panel of that court.

A defendant who appeared at a police station saying he needed to be arrested for his actions, and handed over a note stating he had placed his estranged wife “in a bag on the porch,” cannot suppress statements confessing to strangling his wife, offered after Miranda warnings, and the Court of Appeals affirms defendant’s conviction of voluntary manslaughter.

Although police enlarged a suspect’s photo to make it the same size as others in a photo array, thereby slightly elongating the suspect’s face, the photo array was not unduly suggestive and the sexual assault victim’s identification of the suspect as her assailant was admissible, says the Court of Appeals.

Although defendant says he did not have the specific intent to maim, disable or kill victims, or to damage property, when he drove his vehicle more than 40 to 70 mph over the speed limit in a populated area, the Court of Appeals affirms his convictions for malicious wounding of victims of the traffic accident he caused with three other vehicles, and of totaling multiple vehicles.

The Court of Appeals says defendant is not entitled to reversal of his conviction for taking indecent liberties with a minor based on the trial court’s denying his request for a sleep disorder expert; the evidence proving his indecent proposal to his girlfriend’s teenage daughter is sufficient and his allegedly being asleep during intercourse is irrelevant.

The Court of Appeals affirms a science teacher’s jury trial convictions for possessing child pornography, electronically soliciting sex and exposing her breasts to a minor; the evidence proved teacher and student began sexting after the school year ended until victim cooperated with police to arrange a meeting at which teacher would take student to her home.

A defendant’s conviction of voluntary manslaughter for a shooting outside a Richmond nightclub is reversed by the Court of Appeals because the trial court erred in seating a juror who initially said he would be inclined to find a police officer more credible, and who continued to equivocate, despite the trial court’s efforts to rehabilitate the juror.

A trial court did not err in finding it had authority to defer, but not dismiss, drug charges against defendant after he pleaded guilty to possession with intent to distribute ecstasy and heroin, and the Court of Appeals rejects defendant’s claim that the trial court erred by not withholding a finding of guilt and deferring disposition of his charges for future dismissal.

An Alexandria U.S. District Court dismisses a petition alleging defendant violated her period of supervised release because her term expired before the petition was filed; defendant’s supervised release term was not tolled pursuant to 18 U.S.C. § 3524(e) during the period when she was in pretrial detention on a state charge that later was dismissed as part of her plea agreement to a separate state charge for which she received a suspended custody sentence.

The 4th Circuit vacates a conviction and mandatory life sentence for a codefendant in a botched bank robbery and mid-escape home invasion, which ended in the death of an elderly woman who suffered a heart attack; the district court erred in instructing the jury on an offense not charged in the indictment.

The record does not support a district court’s rejection of civil commitment for a sex offender and the 4th Circuit orders reconsideration; the offender has a long history of acting on his pedophilic urges, has been convicted or adjudicated delinquent five times, has admitted he offended many more times than he was caught and has been resistant to treatment.

A defendant who was charged with stalking but who pleaded guilty to the amended charge of using profane language over a telephone is not entitled to have the stalking charge expunged, says the Hanover County Circuit Court, as the guilty plea removed defendant from the group of “innocent citizens” the legislature intends as the beneficiaries of expungement.

A Loudoun County Circuit Court dismisses a charge under Va. Code § 29.1-521.1 of interfering with lawful hunting against a man who discharged a gun on his own property adjacent to land where four hunters were hunting birds or other game, as several of the hunters did not have written permission to be on the adjacent land where they were hunting.

DOMESTIC RELATIONS

Support Change Clause Not ‘Self-Executing’

A 1999 property settlement agreement stating husband could reduce his monthly child support from $1,500 to $1,050 per month if, “through not fault” of his, he lost his supplemental income as a consultant, was not self-executing, and the husband owes an arrearage after his unilateral reduction of his child support obligation, a Fairfax Circuit Court says.

A couple’s PSA providing the father’s support payments would start “upon the sale of the house or beginning May 1, 2010” meant he had to start paying May 1, 2010, not, as he argued, May 1, 2011, after the marital home sold; the Court of Appeals rejects the father’s claim that the trial court’s interpretation was improper contract reformation.

A Bath County Circuit Court grants a biological father’s petition to change the name of a two-year-old child from the mother’s surname to the father’s surname. The court is of the opinion that it is in the best interest of the child to have his name changed and the court will grant the father’s petition.

In this case of first impression in this circuit, an Alexandria U.S. District Court says a respondent mother who won an international custody case is not entitled to attorney’s fees under the International Child Abduction Remedies Act, but she is entitled to an award of costs under Fed. R. Civ. P. 54(d)(1).

Although a father argues a Virginia court’s registration of a North Carolina order improperly extended his child support obligation, the Court of Appeals says he cannot overturn registration of the 1997 North Carolina order that modified a 1994 child support order entered by a New York court when the parties divorced.

A trial court had no jurisdiction to terminate a mother’s parental rights to her child based on her waiver in a property settlement agreement and because that decision is void, it could not support the trial court’s subsequent denial of mother’s request to reinstate the case on the docket and establish a visitation schedule; the Court of Appeals reverses the judgment and orders reinstatement of the case.

Although a father who has joint physical and legal custody of his 10-year-old son must move to Indiana for a higher-paying job transfer, a Richmond Circuit Court declines to order a custody transfer to father.

In mother’s show cause proceeding, the Court of Appeals summarily affirms the trial court’s order requiring father to pay half of two of their son’s student loans; the parties’ property settlement agreement (PSA) incorporated in the divorce decree requires father to pay half of the Sallie Mae obligation which included six loans.

A trial court erred in crediting a father’s tuition payments toward his child support obligation because the parties had no agreement allowing such a credit; although father signed an answer prepared by mother’s attorney when mother sought annulment of their bigamous marriage, he cannot be held in contempt for failure to pay child support as ordered in the annulment decree because he received no notice of the decree, the Court of Appeals says.

A Richmond Circuit Court overrules a wife’s demurrer to her husband’s suit to terminate spousal support for cohabitation under Va. Code § 20-109(A); because the parties’ agreement was entered into after the enactment of the cohabitation bar provision, husband may invoke the statutory bar.

A father who filed a motion in Fairfax Circuit Court to modify a child support order entered in Fauquier County Circuit Court cannot overturn the Fairfax court’s order to dismiss his motion for lack of subject matter jurisdiction; the Court of Appeals affirms dismissal of the father’s motion to modify support.

A divorce court erred in failing to recognize that husband’s acquisition of half the stock of a family pesticide business was a gift from the corporation, and the Court of Appeals reverses and remands.

A father who acknowledged paternity of the child born to his girlfriend through assisted conception, with their sworn and written “Acknowledgement of Paternity,” a pre-birth custody and visitation agreement, his name on the child’s birth certificate and his care and relationship with the child, is not barred from petitioning for a determination of parentage by Virginia’s statutory scheme that affords “sperm donors” no parental rights; the Court of Appeals reverses a contrary circuit court decision and remands the case.

The Court of Appeals says a mother can use a Qualified Domestic Relations Order to attach a father’s retirement account to collect a $28,000 child support arrearage, even though the mother waived any personal interest in the account in a premarital agreement.

The Court of Appeals affirms a trial court order requiring father to pay one-half of his son’s college attendance under a 1996 agreement incorporated into the final divorce decree; the trial court properly excluded evidence of mother’s alleged breaches.

A Salem Circuit Court says husband is not entitled to credit for making post-separation mortgage payments on the marital home occupied by wife, because the parties agreed he would continue such payments in lieu of a pendent lite hearing for determination of temporary spousal support and debt payments; also, the court declines to credit against wife the $9,500 she allegedly removed from a retirement account prior to separation for cosmetic medical treatment in an attempt to save the marriage.

Although wife’s father testified the multiple payments he provided to wife were gifts to her alone, the Henrico County Circuit Court says it’s less clear from the depositions, and some of the payments were to both and some were wife’s alone.

An employee’s ex-wife collects his life insurance benefits after his death as the named beneficiary of a Federal Employees’ Group Life Insurance policy because federal law preempts Va. Code § 20-111.1(D), which otherwise would make the ex-wife liable to her ex-husband’s widow for those benefits; the Virginia Supreme Court reverses the decision for the widow.

In this domestic relations “reopen case” in which father seeks to reduce support and complains he has been denied visitation, the Fairfax Circuit Court grants mother’s motion for reconsideration of an earlier support modification, as mother did not receive proper notice, and dismisses father’s Rule to Show Cause regarding mother’s alleged denial of visitation.

Although petitioners, a committed lesbian couple, served as outstanding foster parents until recent events, the Wise County Circuit Court cannot disregard the recent founded complaint of abuse and two criminal charges arising from one petitioner’s corporal punishment of her partner’s eight-year-old son, and the court finds it’s in the best interests for the child to remain with her current foster family, who wants to adopt her.

Although the parties’ property settlement agreement did not address husband’s retirement, the parties stipulated his retirement was a material change in circumstances and the Court of Appeals reverses denial of husband’s request for support reduction and remands for the trial court to consider husband’s monthly payment of $3,900, which includes both wife’s share of husband’s pension and $1,000 in monthly spousal support.

Although a father claims the parties’ PSA allowed him to reduce child support after he left his overseas assignment with a private defense contractor in Iraq, the Court of Appeals upholds a trial court judgment that PSA’s support modification provision was not self-executing and father owes $39,000 in arrearages.

The federal agency paying out wife’s share of husband’s federal pension did not conform to the parties’ intention that the cost of wife’s survivor benefit be deducted from her share after calculation of the gross payment, and the Court of Appeals upholds a trial court modification of the QDRO; but the appellate court reverses the trial court’s award of attorney’s fees to wife, as husband did not default under the parties’ PSA.

Although husband’s evidence from a private investigator who followed wife as she met an old high-school boyfriend was sufficient to prove adultery, husband and wife continued their relationship and wife’s later alleged cruelty did not act to “revive” the earlier adultery; the Fauquier County Circuit Court grants a divorce on the basis of a one-year separation.

An African-American female who lost her job as contracts and services coordinator with the State Board of Elections after she made a hotline call about a contract award can sue the agency for violation of her First Amendment rights, but she has failed to state a Bowman claim under Virginia law, says a Richmond U.S. District Court.

A government contractor that does “geonames” mapping work can sue its former employee who allegedly breached an employment agreement when he used plaintiff’s trade secrets with a new employer; the Supreme Court of Virginia reverses the trial court’s dismissal of plaintiff’s claims under the Virginia Trade Secrets Act because the trial court erred in striking the claim because plaintiff contractor did not prove the former employee used the trade secrets to compete with the former employer.

An occupational therapist fired by the Southwest Virginia Mental Health Institute may pursue her claim under 42 U.S.C. § 1983 to the extent she has alleged defendants deprived her of a liberty interest in her state job without due process, but the Abingdon U.S. District Court recommends dismissing her claim regarding a liberty interest in practicing her chosen profession.

Employees of one company did not violate the Computer Fraud & Abuse Act when they allegedly used their authorized computer access to gather confidential information they then passed on to a competitor of their employer; the 4th Circuit says the alleged use of proprietary information to make a presentation to the competitor did not violate the CFAA’s prohibition against unauthorized use of the employer’s computers.

A plaintiff who says he was hired to develop business for defendant company can sue his former employer for allegedly breaching an oral contract to pay a certain salary, bonuses and commissions and overtime pay; the Norfolk U.S. District Court also says plaintiff states a Bowman claim for protesting unpaid wages.

An employer who was hurt and suspicious when he discovered defendant employee had formed a separate company working with two other employees, did not have a good faith basis for suing the former employee on conversion and trade secret claims, and the Fairfax Circuit Court orders sanctions against plaintiff employer under Va. Code § 8.01-271.1.

A nurse employed by a medical center who alleged she was groped, sexually harassed then terminated, by a supervising physician who owned the medical center, has a common law wrongful discharge tort claim against the physician, the Supreme Court of Virginia says.

An employee benefits plan administrator did not abuse its discretion in denying long-term disability benefits to plaintiff, a former Director of Events, under a Hilton Hotels Corporation group plan for his claim based on a primary diagnosis of sarcoidosis/hypertension and diagnoses of lumbar disc disease and anxiety headaches; in this case, plaintiff’s own physician has repeatedly stated she believed plaintiff is capable of returning to work.

An employer that delayed in providing an ERISA life insurance plan participant with the statutorily required sufficient Summary Plan Description must pay plaintiff participant the maximum penalty of $37,510, or $110 per day for 341 days’ delay, says an Alexandria U.S. District Court.

In this ERISA action against an electrical workers union pension fund, a Charlottesville U.S. District Court magistrate judge recommends awarding a total award of $271,869 for attorney’s fees and costs; the magistrate judge rejects as “provincial” defendant’s assertions about the going rate for legal services in the Charlottesville federal court and approves hourly fees ranging from $365 to $585.

A law firm’s benefits plan administrator had to pay a deceased lawyer’s 401(k) and life insurance proceeds to her ex-husband, the designated beneficiary, but ERISA does not prevent enforcement of husband’s PSA waiver of those rights.

Capital One can enforce a noncompete against two former execs who signed Separation Agreements meant to keep them out of banking in the New York metropolitan area, but Alexandria U.S. District Court defers a decision on disgorgement of what the deal netted them.

Although Kentucky courts would allow “blue penciling” of a contract with a noncompete clause, “blue penciling” does not offend Virginia public policy and a Richmond U.S. District Court says it will enforce the parties’ agreement to apply Kentucky law to this noncompete that allegedly covers an engineer who moved from one heavy hauling and rigging company to a competitor company.

Confusion by defendant company’s chief information officer and its “outside counsel” over whether the company was properly served with process was not bad faith, but negligence, and the Richmond U.S. District Court vacates default judgment against the company.

An Alexandria U.S. District Court adopts the “majority view” and says individual school board employees may be sued for FMLA violations; the court says a teacher’s assistant who was not offered a new employment contract after she returned from FMLA leave for treatment of a brain tumor may sue the Loudoun County School Board for FMLA retaliation and for wrongful discharge under the Americans with Disabilities Act.

A Loudoun County Circuit Court reconsiders its earlier decision in this franchisor/franchisee contest, in light of the Home Paramount case, and decides the noncompete and nonsolicitation provisions in the parties’ agreement cannot be enforced.

Plaintiff pest control company wins a temporary restraining order against a former employee who is using a bedbug-sniffing dog plaintiff claims to own to allegedly operate his own business featuring canine bedbug-detection services, as an Alexandria U.S. District Court says defendants’ “dogged attempt to demonstrate ownership” of “Dixie” is “wholly unconvincing.”

A former Newport News Circuit judge fails to overturn or reduce a jury award against her for defamation for telling newspaper reporters that a former court employee who accused the judge of sexual harassment had been “institutionalized,” in this decision from the Supreme Court of Virginia.

Although a bank warned its employees not to talk about plaintiff bank manager’s termination, the manager can sue the bank for breach of contract and defamation after remaining bank employees suggested to community members the manager had been fired “because of money”; but the Roanoke U.S. District Court dismisses the manager’s claim for wrongful termination in violation of Virginia public policy.

A former school administrator has no constitutional claim under 42 U.S.C. § 1983 for application of the schools’ anti-nepotism policy to his request to marry his female subordinate, and the Big Stone Gap U.S. District Court dismisses his complaint.

EMPLOYMENT DISCRIMINATION

Rule 11 Threats Led to Higher Fees

In this suit in which an African-American boat painter won damages for retaliation by a boatyard owner who shared with other area boatyard owners the painter’s EEOC charge, filed after the painter’s termination, the Richmond U.S. District Court Magistrate Judge who tried the case awards plaintiff attorney’s fees of $59,116.67 and costs of $3,322.59.

A federal agency wins summary judgment in Alexandria U.S. District Court in this age discrimination suit filed by a 58-year-old employee who says the government discriminated by not extending a salary-offset waiver.

Although this pro se plaintiff did not receive his EEOC right-to-sue letter until after employer moved to dismiss for lack of exhaustion, an Alexandria U.S. District Court will let plaintiff proceed with his suit alleging age and national origin discrimination.

A bakery could not offer plaintiff driver, who has a surgically implanted heart defibrillator, a lawful accommodation to its requirement that drivers obtain a medical certification in order to drive higher-capacity-carrying trucks, and a bakery company wins summary judgment in this Roanoke U.S. District Court ADA case.

An employee who processed inventory for a discount store, which required that he read labels on merchandise and handle heavy equipment, who was blind in one eye and then suffered iritis and a temporary total loss of vision in his other eye, cannot under the Americans with Disabilities Act for employer’s refusal to grant indefinite leave, says a Danville U.S. District Court.

A bank employee with a history of excessive absenteeism did not articulate a request for leave under the Family Medical Leave Act when she told her employer she would need to be absent from work for more than one day after she cut her foot at home, but her doctor’s excuse only covered one day’s absence; the Roanoke U.S. District Court grants summary judgment to employer.

A pet care specialist who transferred from a New York PetSmart store to one in Chesterfield, Virginia, because she allegedly was being sexually harassed by the store manager in New York, can sue for a “continuing violation” to include harassment by the manager of the Virginia store that led her to obtain a protective order and the manager to plead guilty to assault and battery; the Richmond U.S. District Court says plaintiff’s suit is not time-barred.

A 50-year-old man who alleges he was terminated by his company’s new owners and replaced by a younger employee may sue for age discrimination, but he does not state a claim under the Genetic Information Nondiscrimination Act based on allegations that employer fired him shortly after learning defendant’s wife had multiple sclerosis, says the Abingdon U.S. District Court.

A female production worker at a Roanoke packaging plant who alleges the male employee who supervised her shift sexually harassed her by stalking her, threatening her with disciplinary action if she did not have sex with him and told other employees she was a “whore” and had a sexually transmitted disease, can pursue her Title VII claim, as the 4th Circuit vacates summary judgment for the employer.

Reversing the trial court, the 4th Circuit says a female county employee laid off after 26 years on the job can sue under Title VII on a claim that she was offered a less favorable severance package than that offered to male employees who held similar positions.

Although an employer won a judgment on a jury verdict in this Title VII sexual harassment suit alleging complaints by a waitress, the district court did not err in denying the employer’s motion for attorney’s fees; the EEOC’s case survived dispositive motions, and the 4th Circuit upholds the district court finding that the EEOC’s position was not frivolous, unreasonable or without foundation.

A plaintiff who uses a scooter and wheelchair for mobility has stated state and federal disability discrimination claims against defendant Colonial Williamsburg Foundation for its operation of the Merchants Square retail village, which plaintiff alleges imposes numerous barriers to his access to parking, accessible routes, public restrooms and goods and services; the Newport New U.S. District Court denies a motion to dismiss the suit.

Although a female construction site “helper” claims her marriage to a coworker was annulled before she applied to work for the construction firm, the firm nevertheless could conclude she still was “related to” him under the company’s broad rules about “relatives,” where she and he provided the same home phone numbers and he listed her as his emergency contact; the Big Stone Gap U.S. District Court dismisses her suit alleging she was fired based on gender discrimination, not because she lied on her job application, as the company maintained.

An employer wins summary judgment in a suit alleging retaliation for plaintiff’s complaint about sexual harassment when her male manager slapped her on the behind after she closed a particularly difficult sale of a resort timeshare; her internal complaint was not protected activity under Title VII and legitimate attendance issues led to her termination, says the Norfolk U.S. District Court Magistrate Judge.

An employer wins summary judgment in plaintiff’s suit alleging age and disability discrimination; the Newport News U.S. District Court says employer proved plaintiff was terminated after she failed to return to work following expiration of her extended leave under the Family Medical Leave Act.

A Richmond U.S. District Court says a company that alleges a former employee who settled her sexual harassment claim breached a confidentiality clause by sharing details of the settlement with a coworker, who in turn sued the company, can sue the former employee for breach of contract and rescission of the settlement agreement, and the former employee may counterclaim for sex discrimination, hostile work environment and unlawful retaliation in violation of Title VII.

A Roanoke U.S. District Court grants summary judgment to employer, residential door manufacturer CraftMaster, in a discrimination suit filed by a former truck loading specialist who alleges he suffered Title VII discrimination after he defended a victim of sexual harassment and disability discrimination when he was fired after he “failed” a drug test because his “shy bladder syndrome” prevented his performance of the drug test under surveillance.

An African-America female employee of defendant Navy Federal Credit Union, who responded to an employee counseling session with an abrupt departure and outburst of profanity directed at management and coworkers, and who turned in her badge, was not justified in pursuing her Title VII suit alleging discrimination and retaliation, and the Alexandria U.S. District Court grants defendant summary judgment and a partial award of attorney’s fees.

Emails from a bank’s HR department that talk about job expectations that could “trip up” plaintiff and the need to “scrub” a performance review are enough to raise a triable issue of fact in a fired facilities director’s suit alleging age discrimination and violation of the Family and Medical Leave Act, says a Roanoke U.S. District Court.

A Big Stone Gap U.S. District Court says a female school principal has stated a valid hostile work environment claim based on allegations that she was sexually harassed by a male school superintendent the school board hired despite receiving information about his propensity for sexually inappropriate conduct directed against females.

A Roanoke U.S. District Court grants defendant city summary judgment on a male firefighter’s claim the city violated Title VII when it subjected him to disparate discipline on the basis of gender related to his alleged romantic relationships with two female employees.

A waitress who had an intimate relationship with her boss, who co-owned restaurants where plaintiff worked, may sue for Title VII sex discrimination on a claim the boss who fathered her baby fired her because he did not want a pregnant waitress serving customers; but she cannot state a iiiBowmaniii claim for violation of Virginia public policy based on her allegation that her boss demanded she have an abortion, says a Roanoke U.S. District Court.

An African-American woman’s anonymous call to her employer’s hot line to report a coworker’s alleged use of company Internet access for personal activities was not “protected activity” under Title VII and the Newport News U.S. District Court Magistrate Judge dismisses plaintiff’s claim that she suffered race discrimination when she was targeted during a reduction in force.

The EEOC can obtain five years’ worth of job assignment records from a temporary staffing agency that allegedly discriminated by refusing to reassign a temporary worker who could not read and write English; the 4th Circuit says the district court should defer to the EEOC’s assessment of relevance.

An African-American hospital maintenance worker who says he was assigned more menial duties than nonblack maintenance workers, not promoted and subjected to racial harassment can pursue his claim of “nonverbal” harassment in his lawsuit to include new factual allegations of harassment, says a Roanoke U.S. District Court.

A Charlottesville U.S. District Court declines to dismiss disparate discipline and retaliation claims under Title VII filed by a Caucasian female who alleges her African-American female coworker was not treated as harshly when the two women allegedly had a dispute over plaintiff throwing away a dirty coffee cup and spoon the coworker left in the workplace sink, and the coworker allegedly equated the act to theft and threatened plaintiff with a Bible verse about vengeance.

A male pharmaceutical sales representative cannot sue for gender discrimination based on his supervisor’s inquiry about whether the salesman’s wife could take their child to school at 8:30 so the salesman could comply with the supervisor’s 8:00 a.m. start time for all sales representatives he supervised; the Alexandria U.S. District Court dismisses plaintiff’s claims for gender discrimination, hostile environment and retaliation.

A Ford dealership wins summary judgment in this race discrimination suit in which an African-American claims he was subjected to a hostile work environment based on a series of comments referencing plaintiff as looking like a “thug,” having access to marijuana in the “hood,” wearing a “homie hat” and a coworker’s comment that he wouldn’t “deal with your people”; the Alexandria U.S. District Court says the alleged incidents do not support a hostile environment claim and plaintiff has no evidence to rebut the employer’s proffered reason for termination – his unexcused absences.

A 50-year-old diabetic nurse who alleges defendant hospital terminated her for age and disability discrimination loses on summary judgment on her age discrimination claim, but the Abingdon U.S. District Court says she can try her disability discrimination claim based on her assertion that the hospital developed a list of employees identified as “non-assets” because they were older and had health problems.

A daycare teacher who alleges she was demoted then terminated in violation of Title VII and the Americans with Disabilities Act has raised a genuine issue of material fact that defendant daycare center is a covered employer, says a magistrate judge for the Norfolk U.S. District Court.

ENVIRONMENTAL

Oil Spill Law Does Not Cover ‘Passive’ Discharge

A county does not have to compensate the owners of a 165-acre “manufactured home” park for its contamination of groundwater by leachate and gas from an adjacent county landfill, as the Supreme Court of Virginia says Virginia’s Oil Discharge Law “does not apply to the passive, gradual seepage of leachate and landfill gas into groundwater,” and the high court reverses a $9 million judgment against Campbell County.

In judicial review of a Consent Decree between plaintiff state and federal governments and defendant Hampton Roads Sanitation District covering sanitary sewer discharges that violated the Clean Water Act, the Norfolk U.S. District Court says HRSD may invoke the Consent Decree’s force majeure provision, but the provision does not bar liability for the 10 weather-related and equipment-related SSDs at issue here.

EVIDENCE

Spoliation Dismissal for ‘Wiping’ Computer

A computer expert suing for discrimination who ignored his lawyer’s notice to maintain files and documents and instead ran programs called Evidence Eliminator and CCleaner to delete records, then “wiped” his work desktop, “took a sledgehammer to it” and dumped it in a landfill, has his suit dismissed by the Alexandria U.S. District Court for spoliation of evidence.

IMMIGRATION

‘Moral Turpitude’ Removal Order Vacated

The 4th Circuit vacates a Board of Immigration Appeals’ order of removal for an El Salvadorian native and lawful permanent resident whose removal was ordered after he was charged with a sexual offense against a minor and pleaded guilty to contributing to the delinquency of a minor; the BIA used the wrong method to evaluate what is a crime of “moral turpitude.”

An Afghan native who became a naturalized U.S. citizen and works as a translator cannot overturn his convictions for making false statements on passport applications based on identifying himself on the applications as the “father” of his three stepsons; although the application form does not define “father” and common usage of “father” may include “stepfather,” the 4th Circuit upholds the convictions.

INSURANCE

Below-Limit Settlement Can Trigger Excess Policy

An Alexandria U.S. District Court dismisses defendant insurance carrier’s counterclaim seeking a declaration that plaintiff’s excess insurance coverage has not been triggered because plaintiff has not exhausted its coverage with lower-tier insurance carriers, which did not pay their respective policies’ limits of liability.

An Albemarle County school board’s failure to pay its school bus drivers or “transportation assistants” overtime pay under the Fair Labor Standards Act was a “wrongful act” under the school board’s commercial insurance policy, which does not cover wage payments but should cover liquidated damages and attorney’s fees, the 4th Circuit says.

In determining insurance coverage for a Baltimore child who won a $850,000 judgment for lead paint injuries against two defendants – a realty company and the property owner that bought the house in which the child lived – the 4th Circuit says the realty company’s insurance contract requires the carrier to pay 40 percent of the state court judgment.

An auto-accident plaintiff who won a $4 million summary judgment against a driver can’t extend that win to her own underinsurance motorist carrier, as the Supreme Court of Virginia says the UIM carrier retains its own right to defend in the event the interests of the UIM carrier and the defendant or her liability insurer diverge.

A renter’s continued residence in a rental home even after utilities were turned off created a material factual issue about whether the property was vacant when it burned, and a Richmond U.S. District Court denies an insurance carrier’s motion for summary judgment upholding its denial of insurance coverage to the owners of the rental property.

Although plaintiff’s 2008-2009 auto liability policy omitted a declarations page with UM and UIM limits, that omission did not create an ambiguity which will allow plaintiff to stack insurance policies, says a Roanoke U.S. District Court.

A Charlottesville Circuit Court says an ice rink has insurance coverage for damages from the failure of the heat exchanger in the ice rink’s water heating system, despite the carrier’s denial of coverage on the ground that the heat exchanger failed due to corrosion, an excluded cause of loss under the policy.

INTELLECTUAL PROPERTY

No Preemption of False Marking Claims

In this suit alleging false marking under Section 292 of federal patent law, a Roanoke U.S. District Court rejects defendant’s multi-pronged claim that plaintiff’s claims under California and Washington state law are preempted by the America Invents Act, and defendant’s partial motion to dismiss is denied.

The 4th Circuit upholds a $26 million verdict for a Florida-based designer and distributor of underground mining tires; the district court properly exercised personal jurisdiction over a company domiciled in the United Arab Emirates and a Chinese manufacturer who conspired in Virginia with a former employee of plaintiff to manufacture tires from plaintiff’s blueprints, and defendants are not entitled to a new trial on damages even though the appellate court threw out some of plaintiff’s claims.

A reasonable jury could conclude from testimony of the parties’ experts in this patent infringement suit against Twitter Inc., that the method for creating an “interactive virtual community of famous people” claimed by plaintiff’s ‘309 patent was iiinotiii an interactive virtual community, as defined by the experts, and the Norfolk U.S. District Court denies plaintiff’s motion for a new trial.

In this copyright and trademark litigation involving two marketing companies’ claims to marketing programs involving TV commercials for the “Big Case,” the Norfolk U.S. District Court holds that plaintiff copied defendant’s “Big Case” commercial.

A Richmond U.S. District Court says defendant “spice” company intentionally violated plaintiff tobacco company’s trademarks for plaintiff’s cigarette brand “NEWPORT” with its similarly packaged product called “NEWPROT,” and the court awards defendant 80 percent of the fees and costs it requested, or $231,976 in fees and $18,909 in out-of-pocket expenses.

In this suit alleging three defendants have infringed plaintiff’s patents regarding voice over Internet protocol, the Norfolk U.S. District Court denies a motion to transfer venue even though plaintiff company’s office in Arlington appears to be a “virtual” office with no permanent employees.

LABOR

State Wage Law Not Preempted by FLSA

Federal overtime-pay law under the Fair Labor Standards Act does not preempt a Virginia statute that provides for overtime pay at a lower threshold of hours regularly scheduled during a “recurring and fixed period,” and the Richmond U.S. District Court refuses to grant the city partial summary judgment on a claim filed by Richmond city police officers for overtime pay under state and federal law.

A medical technologist’s complaints within her company about time-sheet alterations that allegedly violated the Fair Labor Standards Act are protected activity and she may sue under the FLSA’s antiretaliation provision, 29 U.S.C. § 215(a)(3), on a complaint that she was terminated for her intracompany complaints.

In this overtime-pay case filed by a long-distance truck driver, defendant trucking company may not subpoena the trucker’s employment records from four prior employers, says a Norfolk U.S. District Court; the court grants the motion to quash the subpoenas duces tecum and enters a protective order limiting defendant’s ability to obtain prior employment records.

LANDLORD/TENANT

Rental Agreement Indemnity Clause ‘Unconscionable’

A pre-drafted form rental agreement that required a tenant to indemnify the landlord for damages caused by the landlord’s negligence is a contract of adhesion and unenforceable under the Virginia Residential Landlord & Tenant Act, and a Roanoke County Circuit Court refuses to enforce the agreement against a tenant and his family whose property was destroyed when the house caught fire after the landlord removed the apparatus for fireplace ashes and covered the opening below the hearth with flammable material.

LEGAL MALPRACTICE

New Will Discovery Means No Malpractice Damages

A law firm accused of malpractice after it sued for its fees for representing plaintiffs in a will contest wins summary judgment in the Alexandria U.S. District Court; the former client has failed to show she sustained any damages as a result of the alleged malpractice, as a later will admitted to probate operates in her favor.

MEDICAL MALPRACTICE

Plaintiff Gets Training Materials, Reports

Recognizing a split among Virginia circuit courts, an Abingdon U.S. District Court says Virginia’s statutory quality assurance privilege does not protect hospital training materials and incident reports in this fatal-fall case.

The Supreme Court of Virginia upholds a $1.95 million jury award to a man whose wife died after outpatient plastic surgery; the trial court did not err in denying a mistrial on a defense complaint about a juror telling plaintiff’s expert, “Good job,” or in admitting decedent’s unpaid medical bills.

A medical malpractice plaintiff who failed to serve a defendant doctor within 12 months of filing suit can’t extend the time to serve him by showing that she used due diligence during that time period to search for an expert to support her claim, as required by Va. Code § 8.01-20.1, and the Virginia Supreme Court affirms dismissal of the complaint with prejudice for failure to obtain service of process under Code § 8.01-275.1 and Rule 3:5(e).

A Fairfax Circuit Court upholds a jury award to a woman who alleges defendant radiologist failed to diagnose her with Stage I or II breast cancer after reading her mammogram, so that her cancer progressed and reduced her chance of survival below 50 percent; however, the court reduces the award of $2.65 million to Virginia’s statutory cap.

In this Federal Tort Claims Act suit alleging negligent failure to diagnose and treat prostate cancer causing impotency, the Roanoke U.S. District Court grants partial summary judgment as to alleged negligence of a nurse practitioner for lack of proof of the standard of care, but allows the case to proceed to trial against the Veterans’ Administration (VA) hospital staff physician who allegedly failed to schedule a repeat biopsy within six months after a biopsy with “suspicious” results.

A widow’s survival action for medical malpractice against Virginia Surgical Associates P.C. (VSA) is saved by the tolling provisions of Va. Code § 8.01-229(E)(3), the Supreme Court of Virginia says; her survival action arises out of the same cause of action for malpractice as her timely nonsuited wrongful death action, extending the limitations period six months.

NEGLIGENCE

Dentist’s Testimony Not Excluded

Although defendant restaurant owner says plaintiff, who alleges he cracked a porcelain crown while eating at defendant’s restaurant, will wind up with better teeth than he had before the incident, a Norfolk Circuit Court says that’s not a reason to exclude the dentist’s testimony.

In an injured seaman’s suit against the owner of a commercial fishing vessel, a Gloucester County Circuit Court excludes plaintiff’s expert because defendant had no duty under maritime law to perform a “job hazard analysis” on vessel-to-vessel ingress and egress, but plaintiff can pursue his negligence claim.

In this auto-accident case, a Prince William Circuit Court recognizes a split of authority but declines to apply the Maryland cap on non-economic damages because the court finds the cap does not affect substantive rights in a wrongful death, but merely affects the remedy.

In a prospective home buyer’s Alexandria U.S. District Court suit alleging injuries from a fall, plaintiff’s expert home inspector can testify even though plaintiff’s amended Rule 26 disclosure summary of the expert’s opinion “ratcheted down” his opinion as stated in the initial disclosure.

A call-center employee who slipped on a puddle of liquid in the lobby of a 12-story office building may sue the janitorial company hired to clean the building for negligence; the Supreme Court of Virginia reverses a trial court decision saying plaintiff was a statutory employee of defendant janitorial service barred from suing for negligence.

A Roanoke U.S. District Court says Virginia would recognize a post-sale duty to warn of defects, and declines to dismiss this claim filed by a plaintiff whose hands were badly injured when using an industrial heat processing system manufactured by defendant and installed in a facility in Roanoke.

The estate of an employee who died in an auto accident after being picked up by a coworker, and who sued the coworker and the employer, gets another chance to retry its case, as the Fairfax Circuit Court grants reconsideration and says the evidence clearly showed the coworker was acting within the scope of his employment, and the only issue for the jury is whether the coworker proximately caused the accident.

A Fairfax Circuit Court says defendants are entitled to discover the factual basis for plaintiff’s claim of lost income and the documentary evidence to support it, in this wrongful death suit alleging defendant convenience store owners were negligent in failing to notify police when assailants forced a woman they abducted to enter the store to buy beer and use an ATM.

A Kroger customer who slipped and fell after a wine distributor’s employee attempted to mop up a spill from a broken bottle loses her premises liability suit, as the Richmond U.S. District Court grants judgment as a matter of law during a jury trial on the claim.

An assistant principal who failed to act on a student’s warning about a fight at his high school enjoys sovereign immunity from a claim of negligence, but now faces a new trial on a claim of gross negligence; the Supreme Court of Virginia reverses the trial court’s $1.25 million judgment against the principal and remands for a new trial.

A Richmond Circuit Court denies a motion to set aside a jury award, including $350,000 in punitive damages, to an insurance carrier who sued its former adjuster for fraud and conversion for causing plaintiff to issue checks for property damage claims for work not performed by contractors, to obtain funds for work at the homes of the adjuster and his mother-in-law.

A personal-injury plaintiff cannot exclude defense testimony from a doctor in the same practice group as the doctor initially named as plaintiff’s retained expert, because she cannot show they shared any confidential information from plaintiff’s medical records; also, plaintiff’s objection to the foundation for a “business records” exception allowing her medical records to come into evidence did not cover her current objection to “opinion” evidence in those medical records, and the Virginia Supreme Court upholds plaintiff’s $9,135 jury award.

A plaintiff in an auto-accident personal injury case may not exclude her recorded statement about the accident, which was reproduced in a transcript, but the Rockingham County Circuit Court says plaintiff may object during trial should the statement be used for an improper purpose under Va. Code § 8.01-404.

Although plaintiff has not identified a particular employee, plaintiff may sue for negligent hiring and retention on allegations that the unknown employee lacked skill or judgment required to operate an amusement ride in a reasonable and prudent manner, and the Hanover Circuit Court overrules defendant’s demurrer.

Although a wine distributor’s employee who was restocking merchandise at a Kroger store moved to mop up a spill from a broken wine bottle and place a yellow cone near the spill, the Richmond U.S. District Court denies summary judgment to defendant Kroger in this negligence action by a woman who slipped and fell, injuring her head, eye and leg.

A plaintiff’s lawyer whose client alleged headaches and neck pain from an auto accident could show the jury a chart asking for specific amounts of money for itemized damages during closing argument, and the Supreme Court of Virginia upholds the $30,000 jury award to plaintiff.

A plaintiff who alleges injuries from exposure to toxic mold at his school when he entered kindergarten in 2007 may sue the school board and the school system’s two officials responsible for facilities and maintenance for fraud and gross negligence, but the Suffolk Circuit Court sustains defendants’ plea of sovereign immunity to plaintiff’s claims for ordinary negligence.

A woman who broke her ankle when she slipped on a puddle of water at the entrance to a Hardee’s restaurant loses her negligence action on summary judgment; the Danville U.S. District Court says she produced no evidence the restaurant had constructive notice of the puddle and plaintiff’s two coworkers, with whom she was riding to work on a snowy morning, both saw the puddle as they entered the restaurant.

A plaintiff’s assertion that defendant driver pleaded guilty to a traffic infraction but now contests liability in this auto-accident personal injury suit has not shown a substantial need to obtain a copy of the transcript or tape of defendant’s interview with the insurance carrier, and the Prince William County Circuit Court denies a motion to compel.

In this suit by two Rite-Aid employees who allege personal injury from a refrigerant gas leak in an ice cream freezer unit at their workplace that was serviced by defendant NexTech Northeast LLC, an Alexandria U.S. District Court grants defendants’ motion in limine to exclude plaintiffs’ proffered experts and grants summary judgment to defendants.

A woman who tripped over a pallet that supported a doughnut display can try her negligence claim against defendant store; a Charlottesville U.S. District Court denies the store’s summary judgment motion claiming the hazard was open and obvious.

A Richmond U.S. District Court magistrate judge says an excavation company that damaged plaintiff Level 3 Communications’ fiber optic cables may bring a third-party action for breach of contract, equitable indemnity and contribution against Accumark Inc., who allegedly incorrectly identified the location and depth of the cables.

Decedent, a member of a paving crew operating a dump truck filled with asphalt, who was struck and killed by two vehicles that entered the highway construction site and struck a front-end loader, pushing it back into the dump truck as decedent stood between the two vehicles, may have been “operating” the dump truck to qualify for underinsured motorist coverage under his employer’s business auto policy, but the Roanoke County Circuit Court denies both sides’ summary judgment motions on this point.

A personal injury plaintiff can have a companion present when underdoing an Independent Medical Exam and can use a videographer to record the event, at his own expense, says a Hanover County Circuit Court.

In a prospective home buyer’s suit alleging injuries from a fall as she was descending a stairwell with a handrail that did not extend for the last three steps, the Alexandria U.S. District Court grants summary judgment to defendant seller because defendant was not negligent and plaintiff was contributorily negligent.

Although a Kroger employee’s testimony and video evidence showed Kroger had actual and/or constructive notice of a spill on the floor near where plaintiff fell, a Roanoke U.S. District Court grants summary judgment to Kroger because it met its duty of ordinary care by having the employee mop the area and place a large warning cone, which plaintiff passed by four times prior to her fall 21 minutes after the attempted clean-up.

A restaurant patron who was stabbed by another patron can sue the restaurant based on an allegation that restaurant staff continued to serve alcohol to the assailant after he had misbehaved and created a dangerous situation; the Norfolk Circuit Court says plaintiff’s claim is not a claim for dramshop liability.

Whether “black ice” at the entrance to a Hardee’s restaurant was open and obvious is in dispute, and a Roanoke U.S. District Court says weather data, testimony by plaintiff’s wife, the manager and another witness create a question for the jury.

Although plaintiff’s insurance carrier mistakenly offered underinsured motorist coverage policy limits, the carrier nevertheless is bound by its offer of $25,000 UIM policy limits, in addition to the $100,000 liability coverage offered by defendant in the underlying auto accident case, and the Hopewell Circuit Court grants plaintiff’s motion to enforce settlement in this case of first impression.

PREMISES LIABILITY

Owner Can Be Sued For Missing Steps

A Norfolk Circuit Court says a prospective buyer who entered a Fannie-Mae-owned home and was seriously injured when he walked down unlit basement stairs that were missing multiple steps at the bottom, can sue Fannie Mae, but not the realty company or brokers, for common law negligence and negligence per se.

A prospective buyer going through defendant’s property who alleges she fell as she was descending a stairwell with a handrail that did not extend to the last three steps can sue for negligence based on the state building code, but the Alexandria U.S. District Court dismisses her claim for punitive damages alleging a home inspector inspected the property several months earlier and found the handrail was inadequate under the building code.

A Richmond U.S. District Court dismisses plaintiff’s premises liability claim alleging injury from exposure to the toxic substance Merphos in office space leased from defendant realty company; although plaintiff has an expert who will testify she suffers from exposure to a toxic substance, there is no evidence as to where the exposure may have occurred, and defendants are entitled to summary judgment.

PRODUCTS LIABILITY

Fatal Van Fire Case Reinstated

A failure-to-warn products liability suit arising from a fire in a 2001 Ford Windstar van that killed a three-year-old girl is reinstated by the Supreme Court of Virginia, who says plaintiff can introduce evidence of four of seven other allegedly similar van fires that were excluded by the trial court.

In this unsuccessful products liability suit against the manufacturer of a child safety seat, the Abingdon U.S. District Court exercises its discretion to deny defendant’s request for costs under Fed. R. Civ. P. 54(d)(1).

A Norfolk Circuit Court preparing to try homeowners’ claims against defendant installers of defective Chinese drywall will exclude evidence of negligence by other defendants who may have settled their claims in multi-district litigation in federal court and will prohibit installer defendants from arguing they are not covered by the Building Code; the court also overrules defendants’ demurrer to the homeowners’ negligence per se claim.

In a plaintiff’s products liability suit alleging injuries from use of a “firepot” and “FIREGEL” sold at a national housewares chain store, the Roanoke U.S. District Court grants the store’s motion to file a third-party complaint against companies that produced and distributed the products.

REAL ESTATE

No Code Compliance Duty to Tenant

A residential landlord does not have a duty in tort to tenants to comply with building and housing codes concerning public health and safety, either under the common law, the leases executed in this case or the Virginia Residential Landlord and Tenant Act; the Supreme Court of Virginia affirms a trial court’s dismissal of a tenant’s suit alleging injuries to a child from lead paint poisoning.

An Alexandria U.S. District Court denies class certification in a suit alleging defendant home warranty company violated the Real Estate Settlement Procedures Act by paying illegal kickbacks and referral fees to real estate agents to promote its home warranty insurance in connection with real estate transactions.

A Northern Virginia couple can get back their $1.674 million purchase price for a lot in a residential community affiliated with the Ritz-Carlton Hotel company; the 4th Circuit says the buyers can rescind the deal under the Interstate Land Sales Full Disclosure Act and get more prejudgment interest because the developer is not protected by an ILSFDA exemption for developments with less than 100 lots.

A lawyer and her husband who owe $76,225 in damages for failing to close on a home purchase also must pay attorney’s fees and costs of $21,466, as an Alexandria U.S. District Court says $350 is a reasonable hourly rate.

An Alexandria U.S. District Court dismisses plaintiffs’ latest complaint in a long-running effort to avoid foreclosure on their property, as Virginia law unequivocally disallows a “show me the note” claim against a note holder, as well as a “show me the note holder’s authority” claim against MERS and the substitute trustee; although plaintiffs’ counsel’s legal theories have been repeatedly rejected by courts, this court will decline to sua sponte award Rule 11 sanctions, as a matter of “judicial grace.”

Virginia’s CRESPA statute does not create a private cause of action against a surety and the surety bond issued pursuant to Va. Code § 6.1-2.21(D)(3), by a party other than the State Corporation Commission, the Virginia Supreme Court says; but a title insurance company may, as a subrogee, bring a common law action against the CRESPA surety on the statutory bond.

A lawyer and her husband who breached a contract to buy a house in Alexandria, when they decided to move to Texas so wife could accept an in-house counsel position, are liable for damages for the difference in their contract price and the house’s ultimate sale price, seller’s brokerage fees and commission and utility and improvement expenses, but not for capital gains taxes the seller paid when she sold IBM stock so she could buy property in Florida after the first sale in Virginia fell through, says an Alexandria U.S. District Court magistrate judge.

Although defendant homeowners challenge a homeowners association’s right to collect dues assessment to support litigation by the association, the Loudoun County Circuit Court upholds the board of directors’ actions that led to the assessments, and enters judgment for the association against the individual homeowners.

A local ordinance that allowed the county to require “time-phased” development of a subdivision – four lots every four years – as opposed to approval of the entire 65-lot subdivision in one plan, exceeded the county’s authority under the Virginia Code and an Orange County Circuit Court strikes the ordinance as a violation of the Dillon Rule.

A homeowners’ association Declaration that allowed assignment of “a maximum of two parking spaces” within the common area requires spaces to be assigned equally among all lot owners, not unequally allocated among owners with and without garages, and the Supreme Court of Virginia upholds a circuit court decision for plaintiff owners as well as an award of attorney’s fees to plaintiffs under Va. Code § 55-515(A).

A Greene County Circuit Court says a developer is entitled to correction of a real estate tax assessment for the tax years 2009 and 2010, based on expert testimony presented by the developer, whose expert made a more thorough investigation of the impact of the cataclysmic downturn underway in 2008 in the real estate market nationally.

A home warranty company’s $60 payment to the real estate company whose agent referred a home buyer to the warranty company to purchase a $399 home warranty was not an illegal kickback under the Real Estate Settlement Procedures Act, and the Alexandria U.S. District Court grants summary judgment for the real estate company on the ground that the $60 payment covered compensable services actually performed.

Although the government may have “played fast and loose” in instructing an independent appraiser to value a 1.604-acre parcel for a Norfolk federal courthouse annex without considering site improvements, the government’s pre-litigation valuation of the land at $10 million was consistent and ultimately, the owners dropped their demand from $36.1 million to $16.32 million, and they recovered $13.4 million at trial, and the Norfolk U.S. District Court concludes the government’s position was “substantially justified” and rejects the magistrate judge’s recommendation to award attorney’s fees under the EAJA.

SEARCH & SEIZURE

ID Request Was Consensual Encounter

A deputy’s initial encounter with a man sitting in his vehicle in a rural driveway where police went to serve felony warrants and request for the man’s license was a consensual encounter and police did not violate defendant’s Fourth Amendment rights when they found cocaine in defendant’s pocket after he consented to a search of his person; the Virginia Supreme Court affirms defendant’s conviction of possession of cocaine with intent to distribute.

Although police did not completely pull down defendant’s pants during a search incident to his arrest on a public residential street, but shone a flashlight down his pants and then used a knife to cut a sandwich baggie with suspected narcotics off defendant’s genitals, the search was a strip search that violated defendant’s Fourth Amendment rights, and the 4th Circuit vacates defendant’s drug conviction.

Officers’ testimony about smelling marijuana after a lawful traffic stop was inconsistent and unsupported and police exceeded the lawful scope of the stop when they hauled a passenger out and handcuffed him without first asking him to exit the vehicle; a Norfolk Circuit Court suppresses the guns found on the passenger after he was handcuffed.

An officer on a domestic call who took defendant into custody on a dispatcher’s report of an outstanding arrest warrant did not violate defendant’s Fourth Amendment rights in a search incident to arrest when he discovered marijuana and a bullet, even though the officer later learned the warrant already had been served on defendant; the Court of Appeals upholds defendant’s conviction on the ammunition possession charge in violation of Va. Code § 18.2-308.2.

The 4th Circuit offers a refresher course in assessing “probable cause” and reverses a district court suppressing drugs found in a secret compartment of defendant’s car – stopped for speeding on a tip that the particular vehicle was being used to transport drugs – because the district court applied the wrong standards for determining whether police had defendant’s consent to search the vehicle and whether there was probable cause to search it.

The 4th Circuit upholds suppression of a gun seized from a vehicle passenger during an illegal stop, and rejects the government’s argument that the illegality of the stop was purged when defendant resisted arrest and assaulted an officer.

Although a search warrant executed by Charlottesville detectives only authorized search of the building of the private ambulance service that employed defendant and had been identified as the subscriber of an IP address to which child pornography had been downloaded, the warrantless seizure of defendant’s laptop from the ambulance parked outside was justified by exigent circumstances, and the 4th Circuit upholds the search and defendant’s conviction for receipt of child pornography.

A search warrant for power tools, copper and accelerants was not supported by an affidavit that recounted facts such as a convicted felon’s recent delivery to the residence and his purchase of a possible accelerant, but the Salem Circuit Court applies the good faith exception and denies defendant’s motion to suppress.

A deputy’s visual estimate of a driver’s speed – uncorroborated by radar or pacing and unsupported by any other indicia of reliability – did not provide a reason to stop the driver for driving 75 in a 70-mph zone, and the 4th Circuit says the district court should have suppressed cocaine found in the van.

A state trooper who was part of an “interdiction” team that targeted suspected criminals traveling on I-95 cannot justify extension of his initial traffic stop for speeding into a 14-minute investigation of potential criminal activity, including use of a drug-sniffing dog, by citing factors such as fast-food wrappers and a new portable GPS device inside the rented van driven from Florida to Philadelphia by two men with Puerto Rican driver’s licenses who spoke little English.

The 4th Circuit upholds a traffic stop based on two officers’ separate visual estimates of defendant’s speed, as the officers’ radar certification training required them to visually estimate vehicle speed within a narrow margin of error; the subsequent open-air search by a drug-sniffing dog did not violate defendant’s Fourth Amendment rights, and his convictions for cocaine and firearms possession are affirmed.

SOCIAL SECURITY

ALJ Can Reject Sole IQ Test

An ALJ can reject the sole finding of claimant’s mental retardation even if there is only one set of test scores in the record; the 4th Circuit joins the majority of federal appeals courts in this view, and upholds the ALJ’s rejection of this claimant’s application for supplemental security income benefits, in light of her past work history and ability to manage daily life.

TAXATION

Appraiser & Engineer May Testify

In plaintiff Army-Navy Country Club’s suit seeking correction of alleged erroneous tax assessments for 2007-2010 of its 231-acre golf course in Fairfax City, the Fairfax Circuit Court denies the country club’s motion to exclude testimony of the city’s expert witnesses, a licensed appraiser and an engineer.

A bank that holds a note secured by a credit line deed of trust on property that owes back taxes and that he bank wants to redeem prior to sale loses its challenge to attorney’s fees the county treasurer wishes to pay to the law firm it hired to collect delinquent taxes; the Roanoke County Circuit Court approves the county treasurer’s business decision to pay the law firm 20 percent of its recovery, as statutorily authorized.

TORT

‘Miss Utility’ Case Punitives Claim Survives

Plaintiff telecommunications company can sue for trespass, including a claim for punitive damages, based on allegations that defendant excavation company severed plaintiff’s fiber optic cable, marked it under Virginia’s “Miss Utility” program..

An underground coal miner fired after he refused to open his locker for investigation of a coworker’s report that plaintiff miner had smoking materials in the mine may sue the mine superintendent who swore out a criminal warrant charging the miner with the felony crime of taking smoking materials into an underground mine, for defamation, malicious prosecution and violation of the Virginia “insulting words” statute, says an Abingdon U.S. District Court.

The Virginia Supreme Court reverses an award of goodwill damages to a government contractor, Perot Systems, against a competitor, 21st Century Systems, and two former Perot employees hired by 21CSI, because Perot’s goodwill expert did not show the departing employees had goodwill value and that Perot’s actual sale price several months later was affected by defendants’ actions.

Plaintiff director of a gay-rights advocacy group has not stated a defamation claim against defendant, the president and CEO of Parents and Friends of Ex-Gays Inc., by alleging defendant stated plaintiff asked for people to “run over” defendant and said he needed to be “hit with a bus” or injected with AIDS; the Richmond U.S. District Court says plaintiff has not alleged defendant knew his statements likely were false.

Plaintiff “brownfield developer” who alleges claims arising from a business deal to bid for, buy and redevelop a brownfield site from WMATA, may only pursue fraud and breach of fiduciary duty claims against a single defendant who allegedly failed to notify plaintiff that the deal had fallen through; the Alexandria U.S. District Court dismisses the remaining claims as time-barred or otherwise insufficient.

A Virginia man whose biological child was adopted by a Utah couple without his consent may sue the adoption agency, the Utah couple and the Virginia and Utah lawyers who brokered the adoption for tortious interference with parental rights; in this case of first impression, the Supreme Court of Virginia recognizes this claim as a common law tort.

In evaluating plaintiff professional tax preparer’s claim that he was defamed by a local news broadcast about “unscrupulous” tax preparers, the Norfolk U.S. District Court will not consider video clips defendant TV station filed with its motion to dismiss, and the court dismisses the complaint because defendant’s treatment of the story could not be interpreted as defamatory to plaintiff and his tax preparation service.

A Pentagon police officer who allegedly assaulted a contract security officer assigned to the Pentagon does not have sovereign immunity from a suit for assault under the Federal Tort Claims Act; the 4th Circuit reverses the district court decision that the U.S. was immune from suit because the police officer was not “engaged in investigative or law enforcement activities” when he allegedly assaulted plaintiff.

Taken in context, defendant’s alleged statement that he relied on plaintiff’s “description of a wall’s construction” when he prepared a letter about inspection of a retaining wall can be viewed as defamatory, and the Louisa County Circuit Court overrules defendant’s demurrer to plaintiff’s defamation claim.

Although plaintiffs won on defendants’ counterclaims alleging misappropriation of trade secrets and business conspiracy, a Loudoun County Circuit Court says they are not entitled to attorney’s fees, nor are they entitled to $13,599 in transcript costs.

In this litigation arising from a computer vendor’s termination of a contract with a marketing company, neither side wins summary judgment on the vendor’s claim to commission refunds for returned products, but the Richmond U.S. District Court grants the marketing company summary judgment on the computer company’s claim for commercial defamation.

A Fairfax Circuit Court denies a protective order to plaintiff church to prevent defendants, who allegedly have defamed plaintiff on their website, from publishing on their website embarrassing materials defendants obtain through discovery.

World Mission Society Church of God v. Colon (VLW 012-8-098) (7 pp.)

No Charitable Immunity for Theatre Foundation

A volunteer who serves on a restoration committee for the vintage Wurlitzer organ at Richmond’s historic Byrd Theatre, and who was injured while attempting to repair the theatre organ, can sue the Byrd Theatre Foundation for negligence; a Richmond Circuit Court says the Foundation does not have charitable immunity.

A dog trainer who won his libel claim against a defendant who disseminated through emails and Facebook allegations of animal cruelty against the trainer has his punitive damage award reduced from $60,000 to $15,000 by the Alexandria U.S. District Court.

A jury awarded a total of $1.2 million in Fairfax businessman’s suit alleging defendant international businessman defamed him by denying he was plaintiff’s biological father and criticizing plaintiff’s handling of divorce and custody litigation, but the Fairfax Circuit Court strikes plaintiff’s “insulting words” claim.

In this Norfolk Circuit Court litigation alleging a health club personal trainer pursued a club member’s wife for a romantic relationship and the husband retaliated with complaints to the club and school where the trainer worked and the couple’s child attended, the husband wins summary judgment in the personal trainer’s counterclaims for defamation and tortious interference with contract and with contract expectancy.

A program assistant for an engineering firm that contracted with the U.S. Navy on a submarine modernization project cannot sue the U.S. for injuries she sustained when, on a golf outing and “team building” exercise with her manager and coworkers, her manager swung a golf club at full strength and struck the assistant in the head as he was attempting to demonstrate correct form; the Norfolk U.S. District Court says the government was plaintiff’s statutory employer and the Virginia Workers’ Compensation Act is her exclusive remedy.

A woman who won her malicious prosecution case against a deputy sheriff who arrested the woman for allegedly withholding information about the location of a dog that bit her, is awarded attorney’s fees of $322,341 and costs of $10,306 by the Richmond U.S. District Court.

TRAFFIC OFFENSES

Instrument Accuracy Proof Not Needed

The Court of Appeals says a certificate of blood alcohol analysis was admissible at defendant’s DWI trial regardless of any alleged error in admitting a certificate of instrument accuracy, and defendant’s conviction of DWI, first offense is affirmed.

A defendant’s general district court conviction of reckless driving bars his felony prosecution for DWI, fourth offense, arising from the same single-car accident, and the Court of Appeals reverses defendant’s conviction on a conditional guilty plea.

An instruction for a “lunchtime” roadblock and the general practice of two-hour checkpoints mean police did not have “unbridled discretion” and the Court of Appeals upholds denial of an HO’s suppression motion.

Six traffic defendants all charged with driving 50-55 mph in a 35 mph zone on the Route 250 Bypass in Charlottesville cannot avoid conviction by mounting a challenge to how the city adopted the local ordinance that lowered the speed limit in what would ordinarily be a 55-mph zone, and the Charlottesville Circuit Court denies defendants’ motions to dismiss.

In the latest in a series of cases involving an apparently drunken person found in a parked vehicle with the keys in the ignition switch, the Supreme Court adds this case to the list of convictions for DUI under Va. Code § 18.2-266.

WILLS & TRUSTS

Legal Assistant Can Assess Capacity

A lawyer’s legal assistant could determine that a hospitalized client had testamentary capacity to change her will to leave her estate to her daughter Mary Ann who cared for her, in contrast to an earlier will that divided the estate among her five children, and the Supreme Court of Virginia reverses the trial court decision that a lawyer could not delegate a duty to determine testamentary capacity.

On a report by the Commissioner of Accounts and review of these seven cases in which a law firm has served in multiple roles, including guardian, conservator and trustee, for incapacitated persons, the Fairfax Circuit Court orders the law firm to provide detailed descriptions of the services, who performed them and at what hourly rate, and says billing at a paralegal/legal assistant rate for nonprofessional services may not be the market rate for the particular services in question.

A couple’s reciprocal wills providing each testator each leaving the entire estate to the surviving spouse, with each testator’s child from a previous marriage to get one-half the estate at the death of the surviving spouse, was not a binding contract and the widow was free to change her will and leave everything to her daughter, but nothing to her stepson, says the Supreme Court of Virginia.

In this challenge to the testamentary capacity of a woman who left most of her estate to three charities, by a cousin whose share under the later will was reduced to the testator’s dog and funds for its care, a trial court did not err in instructing the jury on the presumption of testamentary capacity after denying the executor’s motion to strike; the Supreme Court of Virginia affirms the judgment upholding the later will.

The Norfolk Circuit Court upholds a commissioner’s finding that a beneficiary’s distribution from an estate will be reduced because of her substantial interference with efficient administration of the estate.

In this suit involving competing claims to life insurance proceeds, a Norfolk Circuit Court holds that decedent’s widow, who was replaced by decedent’s daughter as his guardian and conservator, could be removed by the daughter as a beneficiary on decedent’s life insurance benefits, a change he requested when the daughter assisted him in processing his retirement papers.

WORKERS’ COMP

Painter Not ‘Statutory Employee’

An employee of a specialty paint crew painting a Norfolk Southern coal loader was working on a “preservation” project, not a “maintenance” project that was part of Norfolk Sothern’s trade, business or occupation, and the Norfolk Circuit Court rejects a plea in bar of the workers’ comp statute filed by the contractor hired by Norfolk Southern to maintain an elevator in which the employee alleges he was injured.

The commission did not err in refusing to take action against employer after it paid a portion of claimant’s settlement of his workers’ comp claim directly to the Department of Child Support Enforcement, the Court of Appeal says.

Despite evidence that a physician who provided treatment to claimant reduced charges for services to Medicare patients and under a Longshore Fee Schedule, the Court of Appeals says employer did not meet its burden to show the larger fee charged by the provider exceeded the “prevailing rate” in the community for that service, and the order requiring employer to pay the full fee is affirmed.

A cabinetmaker’s employee who suffered a January 2007 wrist injury and a May 2007 thumb injury is not time-barred from claiming workers’ comp benefits for the thumb injury; in a case of first impression, the Court of Appeals says the “blue letter” claimant received on the wrist injury did not trigger a per se lack of prejudice on the later thumb injury, to the employer’s benefit, and the court affirms judgment for claimant.

A sole proprietor of a prefabricated home business did not take income in the two years prior to his death in a work-related auto accident, and his widow cannot collect a workers’ comp award based on a presumed 40-hour work week at the federal minimum wage; the Court of Appeals reverses the commission’s award.

An enlisted seaman, who was part of a Navy crew to pre-commission a nuclear submarine built by defendant shipbuilding company and who allegedly contracted mesothelioma from asbestos exposure, is not barred by the Virginia Workers’ Compensation Act from pursuing a negligence action against the shipyard, the Supreme Court of Virginia says.

The Court of Appeals reverses an award of workers’ comp benefits to a nurse who injured her hand reaching inside her handbag for a favorite pen; as a matter of law, the nurse’s handbag is not a risk peculiar to the job under Virginia’s “actual risk” test.

A waiter who was injured when he “attempted to swallow a piece of quesadilla that was too big for his esophagus” suffered an injury in the course of his employment, but not as a result of an actual risk of employment, and he is not entitled to workers’ comp, the Court of Appeals says.

A woman who alleges a coworker grabbed her breasts as they were discussing whether he would become her supervisor has alleged an injury that arose out of her employment, and the court sustains employer’s plea in bar to her negligence claim.

ZONING

No Vested Rights in Adjacent Land Use

In this first-impression case, the Supreme Court of Virginia says a landowner, here of a commercial building, did not acquire a vested right in the zoning classification or use of an adjacent property or in a road shown on a town plan, when the owner of the adjacent property, a church, seeks rezoning in order to operate a daycare center.

An Alexandria U.S. District Court upholds denial of a permit for construction of a wireless communications facility on a church tower in Sterling, but says the county board of supervisors violated the federal Telecommunications Act when it denied a permit for construction of a proposed facility on a Lovettsville farm based on the environmental effects of radio frequency emissions.